Lis
pendens means that nothing new should be introduced in pending
litigation.
Where
a suit or proceeding is pending between two persons with respect to
immovable property and one of the parties thereto sells,or otherwise
transfers subject matter of litigation, then transferee will be bound
by result of suit or proceeding,whether or not, he had notice of suit
or proceeding .This rule is known as the rule of lis pendens. This
rule affects the purchaser not because the pending suit or proceeding
amounts to notice but because the law does not allow litigants to
give to others pending the litigation any right to property in
dispute so as to prejudice the other party.
Thus
the rule of lis pendens is based on the necessity for final
adjudication: It aims at prevention of multiplicity of suits or
proceedings.A transaction entered in to during pendency of a suit can
not prejudice the interests of a party to suit who is not party to
transaction. The object of the rule is to protect one of the parties
to a litigation against act of the other.
The
doctrine of lis pendens can not be availed of by the transferor and
it is really intended for the protection of the other party, that is
the party in the suit other than the transferor.
Suits
decreed exparte also falls within the scope of doctrine of lis
pendens ,provided they are not collusive.
Compromise
decree also falls within the scope of doctrine of lis pendens,
provided compromise is not result of fraud.
The
rule of lis pendens does not apply to a transfer by a person who
subsequent to transfer is added as a party to the pending suit. A
transfer by a person before he is made a party is not affected by
rule of lis pendens.
It
may be noted that the effect of the rule of lis pendens is not to
invalidate or avoid the transfer,but to make it subject to the result
of the litigation. This provision operates even if the transferee
pendente lite had no notice of pending suit or proceeding at the time
of transfer.
Its
essentials-In order to constitute a lis pendens, the following six
elements must be present:
1.There
should be a suit or a proceeding.
2.The
suit or proceeding must be one in which a right to immovable property
is directly and specifically in question.
3.The
suit or proceeding must not be a collusive one .
4.The
suit or proceeding must be pending.
5.
The property directly and specifically in question in the suit must
be transferred during such pendency.
Pending
litigation-
The
pendency continues from the time the plaint is presented to the
proper court till it is finally disposed of, and complete
satisfaction or discharge of the decree is either obtained or has
become unobtainable.
It
may be noted here that pendency of suit must be in competent court in
India. The reason behind this rule is that in foreign court, not only
the procedure, but even the remedy may be different from that
prevailing in India.
Bonafide
litigation-
The suit or proceeding must
not be collusive.
Right
to property must be in dispute-
The right to an immovable
property must be directly and specifically in issue in the suit or
proceeding.This will happen in a suit for specific performance of
contract to transfer immovable property.
Transfer
during pendency of litigation only-
For the purpose of this
doctrine, the transfer must be made only during pendency of suit or
proceeding. Naturally there a transfer before the suit will not be
affected by lis pendens.It does not matter that the deed is
registered after suit is filed, provided it was executed prior to its
institution.
The decree of first court does
not always put an end to the litigation.Therefore,even after
dismissal of a suit,a purchaser is subject to lis pendens if an
appeal is thereafter fled. Thus the rule of lis pendens applies to a
transfer made after decree of the court but before filing of an
appeal.
In greater Bombay,however it
is necessary to register the notice of lis pendens under S 18 of
Indian Registration Act. Otherwise a pendency does not affect any
transaction.
Important judgments on Lis pendens
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