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Rohan Gupta (.)     26 May 2021

Doctrine of lis pendens

Whether Doctrine of Lis Pendens would apply when appeal is pending adjudication qua the suit property? 



 6 Replies

Advocate Bhartesh goyal (advocate)     26 May 2021

Yes, Appeal is continuation of suit so principles of  lis pendence applies.

1 Like

Rohan Gupta (.)     26 May 2021

What if the opposite party has been filing numerous litigation which was already dismissed before filing the appeal. Still, the doctrine of lis pendens would follow?  

SHIRISH PAWAR, 7738990900 (Advocate)     26 May 2021

Hello,

Doctrine of lis pendence will apply to appeal filed from dismissed suits. 

1 Like

Rohan Gupta (.)     26 May 2021

Thank You for the information Shirish Sir. How could we defend it anyway?

ashok kumar singh (Advocate)     30 May 2021

 

The common-law doctrine of lis pendens says, if property was the subject of litigation, the defendant-owner could transfer all or part of his or her interest in the property during the course of litigation, but not to the detriment of the rights of the plaintiff. In other words, a third party purchaser pendent lite is bound by the judgment of the court as though he or she is a party to the suit. This principle is based on the maxim “pendente lite nihil innovetur” meaning nothing new should be introduced into a pending litigation. In the Indian Law, S. 52 of Transfer of Property Act, 1882 reads, “During the pendency in any court… of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto…” Therefore the property, which is in dispute, should not either be sold or otherwise dealt in by any party to the dispute pendent lite. But, if at all the transfer has taken place, the law does not wipe off the sale by invalidating it but only renders the purchaser subservient to the court’s decision.

This principle of lis pendens underlying the object of section 52 is to maintain the status quo unaffected by the act of parties to the pending litigation. But while the principle contained in this section ought to be in accordance with equity, good conscience and justice, the same is lacking to a certain extent resulting not just in disturbance in its intended equitable and just foundations, but also in serious practical troubles to bona fide purchasers of property pendent lite.

The principle underlying this doctrine is that during the pendency of any suit regarding title of a particular property, no new interest should be created in respect of that property. Creation of a new interest or a title counts as a transfer of property. Hence, the doctrine of lis pendens prohibits the transfer of property which has pending litigation. The doctrine is based upon the position that the decision of the court is pending upon the parties to the suit and also on those who derive the title during the pendency of the suit. The maxim “pendent lite nihil innovator" is a rule which is based upon the prerequisite for final adjudication and also on the just ground that it will be impossible to bring a suit to a successful termination if the alienation is permissible during the pendency of the suit. This doctrine is embodied in Section 52 of the Transfer of Property Act, 1882 which says –

“During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

 Explanation. - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”

Vasundhara Singh (Student)     04 June 2021

Hello, Greetings of the day!  

Lis pendens means a suit or proceeding which are pending in court. The doctrine of Lis Pendens is mentioned under Section 52 of Transfer of Property Act, 1882 and it is based on the maxim ‘ut lite pendente nihil innovetur’ which means nothing should be introduced in a pending suit. This doctrine prevents the interest of the plaintiff by restricting the transfer or dealing in any other way of any property which is subject to a suit proceeding. The basis of the principle of the doctrine of Lis Pendens was laid down in the case of Bellamy v. Sabine.    

In the cases Jayaram Mudaliar v. Ayyaswami and Rajender Singh and Ors. v. Santa Singh and Ors, the supreme court defined Lis Pendens and its applicability in the cases pending in the court.  

This doctrine is also applicable in the cases where the suit is dismissed but the appeal is preferred and it is pending as the appeal is treated as a continuation of the suit. The purpose Lis Pendens id defeated in the case where two parties with collusion start a proceeding to defraud any other third party.  

Best Regards,    

Vasundhara Singh   

Law Student  


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