BADAMI KUMARI PATNA Vs. PURNA CHANDRA JENA

JUDGEMENT

(1.) Respondents 1 to 3 have filed this application for recalling the order dated 15.2.2000 in Second Appeal No. 362 of 1999 admitting the appeal after hearing under Order 41. Rule 11, .Code of Civil Procedure (in short, the "C.P.C"). The learned counsel for respondents 1 to 3 contended that the respondents had filed a Caveat petition on 17.1.2000 and sent notice thereof to the appellants by registered post and the appellants refused to accept such notice. Learned counsel contends that since copy of the appeal memo was not served, the Caveato'rs did not have any opportunity of being heard before the appeal was admitted and the order admitting the appeal should be recalled and the matter should be taken up afresh for hearing under Order 41, Rule 11 CPC in their presence.

(2.) Section 148-A of the CPC contemplates the right of a party to file caveat. The provisions are quoted hereunder for convenience : "148-A. Right to lodge a caveat.-

(3.) The provisions contained in Section 148-A, CPC, envisage that where a caveat has been lodged, the Court shall serve notice of the application filed in such suit or proceeding, on the caveator as contemplated in Section 148-A(3). Similarly, Section 148-A(4) contemplates that where a notice of a caveat has been served on the applicant, such applicant shall serve a copy of the application along with copies of any paper-or document, which has been filed in support of such application. It is thus apparent that under Section 148-A the caveator has a right to be heard, if any application is filed. In the present case, the appellants had filed an appeal under Section 100, CPC. By no stretch of imagination, it can be held that a memorandum of appeal under Section 100, CPC is an application coming within the purview of Section 148-A. As a matter of fact, Order 41, Rule 11 CPC envisages that if an appeal is taken up for admission, notice need not be issued to the respondents at that stage. Since the memorandum of appeal is not an application and respondents did not have any right to object to the admission of appeal at the stage of admission, the application filed for recalling the order of admission is misconceived and accordingly rejected.