DOCTRINE OF LIS PENDENS

DOCTRINE OF LIS PENDENS

Civil Procedure Code LAW EXPLAINED Transfer of Property
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“It is a doctrine common to the courts both of law as well as equity, and rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienation pendent lite were permitted to prevail” [1]

Concept and Nature

Lis Pendens means a pending suit, and the doctrine of Lis pendens has been defined as the Jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.[2]

In general, “lis” means action or suit and “Pendens” means pending or continuing. It means pending suit. In this doctrine, the court has power over property involved in a pending suit. The doctrine of Lis pendens is expounded in Section 53 of Transfer Of Property Act 1882.  The main purpose of Section 52 is to give the court authority over the property in issue.

This section also forbids the transfer of such property in issue to the third party. However, the effect of Section 52 depends upon the decree whether on consent, ex parte or compromise.

Application of Section 52

For the application of this rule,(I) there must be a pendency of proceeding, (II) Such suit must be pending in a court with competent jurisdiction and right of immovable property must be directly in question in that suit. (III) There must be a transfer of disputed property. (IV) Such transfer of property must affect the rights of other parties.

The pendency is continuous till the final execution of the decree. An appeal is included in the continuation of suit thus the doctrine of Lis pendens will continue during the appeal. Lis pendens applies to all stages of suit viz. trial, appeal and execution. The defendant after a final decree can appeal further however, an appeal can be made within a period of limitation. In NC Bhartia vs Gandevi People’s Co-operative Bank LTD. [3] It was held that Kid in a mortgage suit continues after the decree and does not terminate until the security is realized for the satisfaction of the decree.

Section 52 will only apply when the court has competent jurisdiction. Competent Jurisdiction can be observed on three counts: 1) Territorial Jurisdiction, 2) Pecuniary Jurisdiction and 3) Subject matter Jurisdiction. A suit regarding an immovable property should be filed in a court in whose jurisdiction the property is situated.[4] In the case where the court has no Jurisdiction then the doctrine of Lis pendens will not apply. In Nathu Singh vs Anandrao[5], it was held that the doctrine of Lis pendens will commence only from the date on which the plaint is presented to the court having proper Jurisdiction.

Apart from this, the right to immovable property must be directly in question to apply the doctrine of Lis pendens. Lis pendens is not applicable I case which is collusive.  A suit is said to be collusive if it is instituted with malafide intention.

Due to the transfer of property during the pending suit, the rights of another party must be effected. This doctrine is not applicable when the rights of the transferor are only affected.

Section 52, TPA  vs Section 64,CPC

Both Section 52 of TP act and Section 64 of CPC contains the same doctrine but their implication is quite different. Section 52 restricts alienation of property which is the subject matter of the pending suit, however on the other hand Section 64 is applicable only when the degree has been obtained and alienation of property takes place thereafter. In both, these sections alienation of property would be void and no effect would operate.

 Sources:

[1] Lord Turner in Bellamy v. Sabine(1857)

[2] Justice Beg in Jayaram Mudaliar v. Ayyaswami (AIR 1973)

[3] AIR 2002 Guj 209.

[4] Section 16, CPC

[5] AIR1940 Nag. 135

This blog is written by Riddhi Chadha, Fairfield Institute of Management & Technology.

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