S-52 — Transfer of Property Pending Suit Thereto, TPA — 1882

Question: What is the rule regarding the transfer of property pending a suit under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

Section 52 of the Transfer of Property Act, 1882, embodies the doctrine of lis pendens. This doctrine addresses the issue of transferring property when a legal dispute over that property is ongoing. It is intended to prevent the rights of the parties involved in the litigation from being affected by any transactions made during the pendency of the suit.

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Text of Section 52:

• The section states that during the pendency of any suit or proceeding which is not collusive and where any right to immovable property is directly in question, the property cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party to the suit under any decree or order that may be made therein, except with the authority of the court and on such terms as it may impose.

Explanation:

• The pendency of a suit or proceeding begins from the date of the presentation of the plaint or the institution of the proceeding and continues 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 the expiration of any period of limitation prescribed for the execution thereof.

Examples and Illustration:

1. Encroachment Scenario:

• A owns a property peacefully for ten years. B encroaches and builds a hut. A sues B and wins, with the court directing B to remove the encroachments. This decision binds B but not future encroachers unless A takes further legal action.

2. Sale During Litigation:

• A permits B to stay in his house. B sells the house to C without A’s consent. A sues B, and during the litigation, B transfers the property to C. A wins against B, but if the decision binds only B, A must file a new suit against C, and possibly subsequent transferees. Section 52 ensures the decision binds all transferees during litigation.

3. Another Sale Example:

• A owns a house, B resides in it and treats it as his own. A sues B for possession and title declaration. B sells the property to C during litigation. A wins, and under Section 52, the decision binds C, preventing A from having to file new suits against each subsequent transferee.

Legal Implications:

• Protection from Transfer Pendente Lite: Section 52 provides protection against transfers during litigation, ensuring the court’s decision affects all parties, even those not originally involved in the suit.
• Binding Decision: Any transfer during the pendency of litigation is subject to the court’s decision, binding the transferee regardless of their formal participation in the litigation.
• No Need for Injunctions: The section’s protection renders additional injunctions unnecessary, as it adequately secures the parties’ interests during litigation.

Conclusion

Section 52 of the Transfer of Property Act, 1882, effectively safeguards the interests of parties involved in litigation over immovable property by preventing any transactions that might affect the court’s final decision. This provision ensures the stability and enforceability of judicial outcomes, maintaining the integrity of the legal process and preventing endless litigation cycles due to property transfers during disputes.

Question: What is the doctrine of lis pendens as described in Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens, embodied in Section 52 of the Transfer of Property Act, 1882, addresses the transfer of property during ongoing litigation. Derived from the Latin term “lis” meaning suit and “pendens” meaning pending, this legal principle ensures that the subject property of a legal dispute remains under the jurisdiction of the court until the resolution of the case. This doctrine aims to prevent any party from altering the status quo of the property in question, thereby protecting the interests of the litigating parties.

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Definition and Principle:

• Lis pendens refers to the control that courts have over property involved in litigation during the pendency of a suit. The principle is rooted in the maxim “ut lite pendente nihil innovetur,” meaning no new rights should be created during litigation.
• The doctrine ensures that any transfer of property pending a suit is subject to the final decision of the court. This principle is based on equity, justice, and public policy to prevent endless litigation cycles due to successive transfers of property.

Section 52 of the Transfer of Property Act:

• This section states that during the pendency of any non-collusive suit or proceeding where any right to immovable property is directly and specifically in question, the property cannot be transferred or dealt with in a manner that affects the rights of any party under any decree or order of the court, except with the court’s permission.
• The pendency of a suit is considered to start from the date of the presentation of the plaint or institution of the proceeding and continues until the final decree or order is obtained and satisfied.

Illustration and Application:

1. Example of Encroachment:

• If A owns a property and B encroaches on it, A files a suit against B. During the suit, B transfers the property to C. A wins the case, and under Section 52, the judgment binds C as well. This prevents A from having to file new suits against each successive transferee.

2. Sale During Litigation:

• A allows B to stay in his house. B sells the house to C without A’s consent during ongoing litigation. A wins the suit, and the judgment is binding on C, who acquired the property during the litigation, preventing A from filing additional suits against subsequent buyers.

Legal Implications:

• Protection from Transfer Pendente Lite: Section 52 protects litigating parties by making transfers during the litigation subject to the court’s decision, ensuring the court’s ruling is enforceable against all transferees.
• Binding Decision: The doctrine prevents property transfers during litigation from undermining the court’s decision. It ensures that the final decree affects all parties, even those not formally joined in the litigation.
• No Need for Injunctions: Since the section itself provides adequate protection, additional injunctions are unnecessary unless the plaintiff demonstrates inadequacies in the rule of lis pendens.

Ingredients of Doctrine of Lis Pendens:

• A litigation must be pending in a court of competent jurisdiction.
• The suit must relate to specific immovable property.
• The suit should not be collusive.
• The litigation should concern a right to the specific property.
• The property should not be transferred or dealt with by any party to the suit.
• The transfer should not affect the rights of any party to the litigation until the final disposal of the case.

Conclusion

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, serves as a crucial legal mechanism to ensure the integrity and effectiveness of judicial proceedings. By preventing the transfer of disputed property during litigation, it safeguards the rights of the parties involved and ensures that the court’s final decision is respected and enforceable against all parties, maintaining the status quo and avoiding protracted litigation.

Question: What are the state amendments to Section 52 of the Transfer of Property Act, 1882, as applicable in Gujarat and Maharashtra?

Answer

Introduction

Section 52 of the Transfer of Property Act, 1882, deals with the doctrine of lis pendens, which prevents the transfer of immovable property involved in ongoing litigation. However, specific amendments to this section have been made in the states of Gujarat and Maharashtra to further regulate the application of this doctrine. These amendments require the registration of notice of pendency to provide transparency and ensure that all parties are aware of ongoing litigations involving property.

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State Amendments by the Bombay Act, 1939:

• Notice Registration Requirement:
• The amended section, as applicable in Gujarat and Maharashtra, mandates that during the pendency of any non-collusive suit or proceeding in any court having authority within India (excluding Jammu and Kashmir) or established beyond such limits by the Central Government, where any right to immovable property is directly and specifically in question, notice of the pendency must be registered under Section 18 of the Indian Registration Act, 1908.
• Once the notice is registered, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding in a manner that affects the rights of any other party thereto under any decree or order that may be made, except with the authority of the court and under such terms as it may impose.

Details Required in the Notice:

• The notice of pendency of the suit or proceeding must include the following particulars:
• Name and Address: The name and address of the owner of the immovable property or other person whose right to the immovable property is in question.
• Property Description: A description of the immovable property whose right is in question.
• Court Details: The court in which the suit or proceeding is pending.
• Nature and Title: The nature and title of the suit or proceeding.
• Date of Institution: The date on which the suit or proceeding was instituted.

Impact of Amendments:

• The requirement for notice registration introduces a layer of transparency and ensures that third parties are informed about ongoing litigation involving the property.
• These amendments prevent unauthorized transfers of the property and protect the interests of the litigating parties.
• The Bombay Act 14 of 1939, read with Act 57 of 1959, emphasizes the need for publication and registration of the notice of lis pendens under the Registration Act, further reinforcing the protection against fraudulent transfers.

Terminology and Changes:

• The amendment in 1929 replaced “active prosecution” with “pendency” and substituted “any suit or proceedings which is not collusive” for “a contentious suit or proceedings.”
• An explanation was added to define and fix the time frame within which the suit is deemed to be pending in court.

Conclusion

The amendments to Section 52 of the Transfer of Property Act, 1882, in Gujarat and Maharashtra enhance the doctrine of lis pendens by requiring the registration of notice of pendency. This procedural requirement ensures that all parties are informed of ongoing litigation involving immovable property, thereby preventing unauthorized transfers and protecting the rights of the litigating parties. The changes introduced by the Bombay Act, 1939, and subsequent acts reflect a commitment to transparency and justice in property disputes.

Question: What is the significance of the term “pendency” in the application of the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens is crucial in property law, preventing the transfer or dealing of property involved in a legal dispute. A fundamental element of this doctrine is the concept of “pendency,” which determines the period during which the property is subject to legal proceedings. Understanding the scope and implications of “pendency” is essential for comprehending how the doctrine of lis pendens operates under Section 52 of the Transfer of Property Act, 1882.

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Definition and Explanation of Pendency:

• The term “pendency” refers to the period from the commencement of a legal case until its final disposal. According to the explanation provided in Section 52 of the Transfer of Property Act, 1882:
• Commencement: The pendency of a suit or proceeding begins from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction.
• Continuation: The pendency continues until the suit or proceeding is disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained. If the satisfaction or discharge becomes unobtainable due to the expiration of any period of limitation prescribed for the execution thereof, the pendency is deemed to continue.

Practical Implications:

• Example: Consider a scenario where A executes a gift of his property in favour of B. Before B could take possession, A dies, and A’s son, S, takes possession of the property as his heir. B files a suit challenging S’s title and seeks possession of the property based on the gift deed. The suit commences on the day B files the plaint. The case progresses through various courts, and the Apex Court eventually passes a decree in B’s favour. Despite B being declared the owner, the suit remains pending until B obtains possession of the property through execution of the decree.

Effect of Transfers During Pendency:

• Any sale or mortgage executed after the filing of the plaint but before the issuance of summons is subject to lis pendens. For instance, a sale or mortgage executed after the plaint is filed but before the issue of summons would be hit by lis pendens, while amendments to the plaint typically do not affect this rule unless the property is transferred after an amendment application has been made to the court.
• Insufficiently Stamped Plaint: If a plaint is insufficiently stamped and rejected by the court, and then refiled after making good the deficit, any alienation between the two dates is not affected by lis pendens unless the court recovers the deficit fees without returning the plaint.
• Application to Sue in Forma Pauperis: When an application to sue in forma pauperis is admitted, the suit is considered pending from the date of the presentation of the application to the court. Conversely, if the application is rejected, the lis pendens does not commence.

Case Law Illustrations:

• Amarnath v. Deputy Director of Consolidation, Kanpur: In this case, A filed a partition suit in 1956, and during the proceedings, B contended that some properties were erroneously left out as joint family properties. The suit was compromised with the understanding that the omitted properties would be shared equally. However, before the final disposal, A gifted the disputed plot to his grandson. The court held that the gift was subject to the rule of lis pendens.

Conclusion

The concept of “pendency” is integral to the doctrine of lis pendens, ensuring that property involved in legal disputes cannot be transferred or dealt with in a manner that affects the rights of the parties involved. The period of pendency starts from the filing of the plaint and continues until the final execution of the decree or order. This doctrine safeguards the interests of the litigating parties and upholds the integrity of judicial proceedings by preventing successive alienations that could undermine the court’s ability to render justice.

Question: How does the doctrine of lis pendens apply during appeal and execution proceedings according to Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens, as codified in Section 52 of the Transfer of Property Act, 1882, extends its applicability to the period during which a suit is pending in court. This includes the time frame covering appeals and execution of decrees. Understanding how lis pendens operates during these stages is essential for ensuring that the rights of the parties involved in the litigation are protected until the final resolution of the dispute.

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Continuance of Lis Pendens During Appeals:

• The doctrine of lis pendens remains in effect throughout the appeal process. For instance, if a suit is decided by a lower court and an appeal is filed in a higher court, the doctrine continues to apply. The property in dispute cannot be transferred or otherwise dealt with in a manner that affects the rights of the parties during the pendency of the appeal. This ensures that any decision made by the appellate court will have the intended effect on the property in question.
• Example: A suit is filed in a district court concerning a specific immovable property. The district court decides the case, and an appeal is filed in the High Court. Subsequently, a second appeal is filed in the Supreme Court. Even after the Supreme Court passes its judgment, if the relief involves recovery of possession from a trespasser, the suit remains pending until the possession is delivered. Any transfer of the property during this period would be subject to the rule of lis pendens.

Effect of Lis Pendens During Execution:

• The doctrine of lis pendens also applies during the execution of a decree. The suit continues to be pending until the decree is fully executed and the relief sought by the plaintiff is obtained. For instance, if a court passes a decree requiring a trespasser to vacate a property within 30 days, the suit is considered pending during this period. Any transfer of the property by the trespasser during these 30 days would be invalid under the rule of lis pendens.
• Example: A mortgages his property to B to secure a loan. A fails to repay the loan, and B files a suit for foreclosure. A decree is passed in B’s favor, but the suit remains pending until the mortgage amount is realized through the sale of the property. Any transfer of the property by A during this period would be subject to lis pendens.

Judicial Interpretations and Case Law:

• Amarnath v. Deputy Director of Consolidation, Kanpur: This case illustrates that lis pendens applies even when the properties initially omitted from a partition suit are later included and admitted as joint family properties. If one party attempts to transfer such property before the suit is finally disposed of, the transfer is subject to the rule of lis pendens.
• Mortgage and Sale Decrees: The doctrine applies from the filing of the plaint until the final execution of the decree. For example, if a preliminary decree for the sale of a mortgaged property is passed, the suit remains pending until the sale is executed and the proceeds are distributed. Any transfer of the property during this period would be subject to the rule of lis pendens.

Application During Limitation Periods:

• The period of pendency includes the time allowed for filing appeals. The suit is deemed pending until the final disposal of the case, including appeals. For instance, if a decree for specific performance is passed, the court retains control over the decree even after it is passed, ensuring that the parties adhere to its terms.

Exceptions to Lis Pendens:

• Allotment and Reallotment Cases: In cases where the allotment of property by an authority is canceled, and the appeal is dismissed before the property is reallotted, lis pendens does not apply. For instance, if an urban development authority cancels an allotment and reallots the plot after the dismissal of an appeal, lis pendens is not attracted.

Conclusion

The doctrine of lis pendens ensures that the rights of the parties involved in litigation are protected throughout the entire legal process, including appeals and execution of decrees. This principle prevents any party from undermining the court’s authority by transferring or otherwise dealing with the property in dispute during the pendency of the suit. By maintaining the status quo, the doctrine facilitates the fair and effective administration of justice, ensuring that the court’s decisions are implemented without interference.

Question: How does the doctrine of lis pendens apply to proceedings in civil appeals before the Supreme Court, and what constitutes a “suit or proceeding” under this doctrine?

Answer

Introduction

The doctrine of lis pendens, which prevents the transfer of property during the pendency of a suit, extends to proceedings in civil appeals before the Supreme Court of India. The principle ensures that the final outcome of a case is not undermined by any interim transfers of the disputed property. Understanding how this doctrine applies in the context of the Supreme Court’s appellate jurisdiction, as well as what constitutes a “suit or proceeding,” is crucial for legal practitioners and litigants alike.

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Applicability of Lis Pendens in Supreme Court Appeals:

• Continuation of Proceedings: The Supreme Court, positioned at the apex of the Indian judiciary, exercises both original and appellate jurisdiction. Proceedings before the Supreme Court are regarded as a continuation of the original suit. This means that the doctrine of lis pendens applies to these proceedings just as it would in any lower court.
• Case Example — Dalip Kumar v. Jeewan Ram: In this case, A filed a suit for possession by way of pre-emption of land sold to B. The lower court ruled in favor of A, and he took possession of the property. Subsequent appeals to the High Court and the Supreme Court were dismissed. A special leave petition under Article 136 of the Constitution was granted by the Supreme Court, and the appeal was accepted. During this time, A sold the property to X. The Supreme Court held that the sale to X was subject to the rule of lis pendens and ordered restitution of possession to the other party. This case illustrates that the principle of lis pendens continues to apply throughout the appellate process, including proceedings before the Supreme Court.

Definition of “Suit or Proceeding”:

• Legal Actions Covered: The term “suit” refers to legal actions initiated by a person seeking relief through the judicial system. This includes:
• Injunction Suits: Temporary or permanent injunctions.
• Easement Suits: Claims related to easements.
• Partition Suits: Disputes involving the division of property.
• Foreclosure and Redemption Suits: Actions related to mortgage foreclosure or redemption.
• Pre-emption Suits: Claims asserting a right of pre-emption.
• Specific Performance Suits: Cases demanding the specific performance of a contract.
• Writ Petitions: Legal actions filed directly in higher courts under their writ jurisdiction.
• Non-Inclusive Actions: The term does not cover review petitions if there is a delay in filing.
• Legal Proceedings Covered: The term “proceedings” encompasses a broader range of legal actions, including:
• Revenue Proceedings: Matters related to revenue laws.
• Co-operative Society Proceedings: Actions before the Registrar of co-operative societies.
• Exclusions: It does not include proceedings before certain authorities, such as a Settlement Officer.
• Special Applications: Applications for private awards creating a charge for maintenance are considered part of “suit or proceedings.”

Impact of the Doctrine on Legal Actions:

• Prevention of Alienation: By applying the doctrine of lis pendens, courts ensure that property involved in litigation cannot be alienated in a manner that affects the rights of any party to the suit. This principle safeguards the integrity of judicial decisions and prevents multiple, successive litigations over the same property.
• Restitution Rights: The principle also supports restitution, allowing courts to restore the parties to their original positions if an interim transfer of property occurs during litigation. This ensures that the final decree or judgment is effectively implemented without being obstructed by intermediate transactions.

Conclusion

The doctrine of lis pendens is a critical legal principle that extends to proceedings before the Supreme Court, ensuring that the rights of parties involved in litigation are protected until the final resolution of the case. By defining what constitutes a “suit or proceeding,” the doctrine covers a wide range of legal actions, preventing the transfer of property during the pendency of these actions and maintaining the efficacy of judicial decisions. This principle upholds the rule of law by ensuring that judicial outcomes are respected and enforced.

Question: How does the doctrine of lis pendens apply to execution sales and revenue sales?

Answer

Introduction

The doctrine of lis pendens, which prevents the transfer of property during the pendency of a lawsuit, typically applies to voluntary transfers made by parties to the suit. However, its application to court-ordered sales, including execution sales and revenue sales, requires a nuanced understanding of legal principles and judicial interpretations.

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Application of Lis Pendens to Execution Sales:

• General Rule: The doctrine of lis pendens does not typically apply to court sales. This means that transfers made under the authority of the court are generally not restricted by the rule.
• Exceptions — Execution Sales: Despite the general rule, the doctrine has been applied to execution sales. Execution sales are those conducted by the court to satisfy a money decree or other court orders.
• Judicial Precedents: Courts have held that the doctrine of lis pendens can apply to execution sales if they involve questions of rights to immovable property. For example, in cases where a money decree is being executed against property that is also subject to a pending mortgage suit, the execution sale may be affected by the doctrine of lis pendens.
• Case Example: In cases where a property is sold in execution of a money decree while a suit on a simple mortgage is pending, the sale can be subject to the doctrine of lis pendens, as it involves the right to immovable property.

Application of Lis Pendens to Revenue Sales:

• Revenue Court Proceedings: The doctrine of lis pendens can apply to proceedings before a Revenue Court, particularly in cases involving the sale of a share of an estate for arrears of land revenue or income tax during the pendency of execution proceedings.
• Examples:
• Land Revenue Arrears: If a share of an estate is sold for arrears of land revenue while execution proceedings to enforce a mortgage on the property are pending, the doctrine of lis pendens may apply.
• Income Tax Arrears: Similarly, a sale for arrears of income tax during such proceedings would be subject to lis pendens.
• Sales by Collectors: Sales conducted by collectors under the Code of Civil Procedure, 1908, for amounts due in respect of court fees payable by plaintiffs in forma pauperis suits, are also subject to the doctrine.
• Criminal Procedure Sales: Sales under the Criminal Procedure Code, 1973, during the pendency of relevant proceedings, fall under the same principle.

Non-Applicability in Certain Cases:

• Government Revenue Arrears: The doctrine of lis pendens does not apply to sales for arrears of government revenue during the pendency of execution proceedings for a money decree if no right to immovable property was at issue in the original suit.
• Clarification: In cases where the sale is purely for recovery of government dues, and no immovable property rights are contested in the underlying suit, the principle of lis pendens does not restrict such sales.

Conclusion

The doctrine of lis pendens primarily aims to prevent the transfer of property rights during ongoing litigation to preserve the effectiveness of court judgments. While it generally does not apply to court-ordered sales, exceptions exist for execution sales and certain revenue sales involving rights to immovable property. These applications ensure that judicial outcomes are not undermined by interim transfers, thereby upholding the integrity of the legal process and the enforceability of court decrees.

Question: How does the doctrine of lis pendens apply to collusive suits?

Answer

Introduction

The doctrine of lis pendens is intended to maintain the status quo of property involved in litigation by preventing any party from transferring or altering rights to the property during the pendency of a suit. However, the effectiveness of this doctrine is contingent on the legitimacy of the proceedings. The doctrine does not apply to collusive suits, which are fabricated or fraudulent suits designed to defeat the rights of legitimate claimants.

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Definition and Characteristics of Collusive Suits:

• Collusive Suits: A collusive suit is defined as a sham or pretentious suit filed with the intention of conspiring to defeat the rights of a third party. These suits are not genuine and involve cooperation between the parties to create a false legal controversy.
• Historical Context: The original text of Section 52 of the Transfer of Property Act, 1882, did not use the term “collusive” but rather referred to “contentious suit or proceedings.” The term “collusive” was added in 1929 to clarify that the rule of lis pendens does not apply to such deceptive lawsuits.

Legal Implications of Collusive Suits:

• Non-Application of Lis Pendens: If a suit is found to be collusive, any transfer of property made during its pendency will not be affected by the doctrine of lis pendens. This is because the suit itself lacks genuineness and is not a legitimate legal proceeding.
• Illustrative Example: Suppose A, the owner of a house, contracts to sell it to B and receives an advance payment. The contract stipulates penalties for non-performance. A, intending to avoid executing the sale or paying damages, colludes with his wife to file a maintenance suit charging the property. Since this suit is collusive, any transfer made during its pendency is not restricted by the rule of lis pendens.

Judicial Precedents and Principles:

• Purpose of Collusion: When parties to a suit conspire to defeat the rights of a transferee and secure a decree based on their agreement, the suit is deemed collusive, and the rule of lis pendens does not apply.
• Lis Pendens Applicability: The doctrine applies from the moment a non-collusive suit is instituted. A suit does not become collusive simply because it ends in a compromise or consent decree, provided it is honest and free from fraud or collusion.
• Compromise and Withdrawal: If a suit is withdrawn and a compromise is recorded in a conveyance between the parties, the compromise is not subject to lis pendens. Similarly, an abandoned suit is treated like a collusive suit and is exempt from the doctrine.
• Bona Fide Purchases: During the pendency of a collusive suit, if a person bona fide purchases property, the charge subsequently created in favor of the plaintiff in the collusive suit does not prevail against the purchaser’s rights.

Difference Between Collusive and Fraudulent Suits:

• Distinct Legal Concepts: A collusive suit is different from a fraudulent suit. While both involve deceit, a collusive suit is a mere pretense and is not binding on transferees, whereas a fraudulent suit may have broader implications.

Conclusion

The doctrine of lis pendens is designed to protect the integrity of judicial proceedings by preventing property transfers during litigation. However, its application is limited to genuine suits and does not extend to collusive suits. Collusive suits, being fraudulent and deceptive, are not protected by the doctrine, ensuring that only legitimate legal actions can affect the rights of third parties. This distinction helps preserve the fairness and effectiveness of the judicial process, preventing misuse of legal mechanisms to defeat rightful claims.

Question: How does the concept of notice impact the application of the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens, enshrined in Section 52 of the Transfer of Property Act, 1882, is designed to prevent any transfer of property rights during the pendency of litigation involving that property. An important aspect of this doctrine is whether the transferee had notice — either actual or constructive — of the pending litigation.

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Concept of Notice:

• Actual vs. Constructive Notice: Notice can be actual or constructive. Actual notice means the transferee was directly informed about the litigation. Constructive notice implies that the transferee should have known about the litigation through reasonable diligence. For instance, if a usufructuary mortgagee (a mortgagee in possession of the property) is involved, constructive notice of the obligations can be imputed to him. If a transaction is recorded in village books, this may also constitute constructive notice. The transferee must prove their bona fides if they claim to be unaware of the litigation.

Legal Implications of Notice:

• Statutory Rule: Section 52 establishes a statutory rule based on expediency and public policy. It disregards questions of good faith or bona fides. The alienee’s knowledge of the litigation, or lack thereof, is irrelevant. The principle aims to maintain the status quo during litigation, making any transfer pendente lite (during litigation) illegal, regardless of the transferee’s notice.
• Case Example: If a property subject to litigation is sold during a suit for specific performance, the sale is void under lis pendens, even if the purchaser had no knowledge of the pending suit. Good faith is irrelevant in these cases.

Implications for Bona Fide Purchasers:

• Protection Under Section 41: A transferee pendente lite cannot claim protection under Section 41 of the Transfer of Property Act, which protects bona fide purchasers without notice. Since the doctrine of lis pendens overrides considerations of notice, any transfer made during the pendency of litigation is invalid.
• Case Example: A purchaser who buys property during a restraint order cannot claim ignorance of the litigation if all parties are from the same village and the litigation was public knowledge.

State Amendments:

• Gujarat and Maharashtra: In Gujarat and Maharashtra, state amendments mandate that a notice of the pending litigation be registered in a prescribed manner. This ensures that all parties are formally informed of the litigation, and the rule of lis pendens applies only after such notice is registered.

Judicial Precedents:

• Irrelevance of Good Faith: Courts have consistently held that the good faith of the transferee is immaterial under Section 52. The mere fact of litigation pending makes any transfer void.

Case Examples:

• Sale During Specific Performance Suit: If a suit for specific performance is pending and the property is sold, the transfer is void under lis pendens, irrespective of the purchaser’s knowledge of the litigation.
• Village Notice: Where property transactions are common knowledge in a village, a transferee cannot claim ignorance of ongoing litigation involving that property.

Conclusion

The concept of notice, whether actual or constructive, plays a crucial role in the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. However, the doctrine operates independently of the transferee’s knowledge or good faith.

This ensures that the status quo is maintained during litigation, protecting the interests of all parties involved. The statutory rule is strict, voiding any transfer made during litigation to uphold judicial processes and prevent the defeat of rightful claims.

The amendments in Gujarat and Maharashtra, which require formal notice registration, further reinforce this principle, ensuring clarity and transparency in property transactions during litigation.

Question: How does the competence of a court impact the application of the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, ensures that any transfer of property during litigation is subject to the outcome of the suit. This doctrine applies only when the suit is pending in a court of competent jurisdiction.

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Court Competence:

• Pecuniary and Territorial Jurisdiction: The courts in India are classified based on their jurisdiction — pecuniary (monetary value of claims), territorial (geographical area), and subject matter (specific types of cases). A court must have the proper jurisdiction to try a case for lis pendens to apply.
• Example: If A, owning a house in Lucknow, files a case in Delhi for a trespass on his Lucknow property, the transfer during this suit would not be affected by lis pendens. This is because Delhi courts lack jurisdiction over the Lucknow property.

Impact of Competence on Lis Pendens:

• Invalid Suit Filings: If a suit is filed in a court lacking jurisdiction, transfers made during the pendency of such a suit are not affected by lis pendens.
• Example: In Govinda Pillai Gopala Pillai v Aiyyappan Krishnan, a plaint was returned for being filed in a court without pecuniary jurisdiction. A transfer made before refiling in the competent court was not hit by lis pendens because, at the time of transfer, no suit was pending in a competent court.
• Nathu Singh v Anand Rao: A minor’s suit for partition filed in an incorrect court, followed by a proper filing, did not affect a mortgage executed before refiling. The court ruled that the doctrine of lis pendens did not apply as the initial court lacked jurisdiction.

Foreign and Higher Courts:

• Foreign Courts: Pendency in a foreign court does not invoke lis pendens for property in India, nor does it apply to property outside India. However, the Privy Council is not considered a foreign court.
• Example: A mortgage suit on land in the moffusil area filed in the Supreme Court of Calcutta, which had no jurisdiction, would not trigger lis pendens.

Special Jurisdiction:

• Revenue and Co-operative Societies: Lis pendens applies to transfers during proceedings before a registrar of co-operative societies or revenue courts but not before bodies without jurisdiction over property rights.
• Example: A transfer made during proceedings in an incorrectly valued case, like in Ma Than v Maung Bagyan, where the Township Court lacked pecuniary jurisdiction, is not subject to lis pendens.

Conclusion

The doctrine of lis pendens is contingent on the competency of the court in which the suit is pending. A suit filed in a court without proper jurisdiction does not invoke the doctrine, making any transfer during such a suit valid. The competence of a court, determined by its pecuniary, territorial, and subject matter jurisdiction, is crucial in applying Section 52. The principle ensures that property transfers during litigation are regulated and that litigation outcomes are respected, provided the litigation is in a competent court.

Question: Under what circumstances does the doctrine of lis pendens apply to specific rights in immovable property according to Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, applies to protect the rights in immovable property that is the subject of litigation. This doctrine ensures that any transfer of such property during the pendency of a suit is subject to the outcome of that suit. However, its application depends on whether the suit directly and specifically involves rights in immovable property.

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Application to Specific Rights in Immovable Property:

• Charge Creation by Consent Decree: If a consent decree in a money suit merely creates a charge on immovable property without directly involving any question of right in the property, the doctrine of lis pendens does not apply .
• Relevant Cases: The doctrine applies to various cases involving specific rights in immovable property, including:
• Sale and Specific Performance: Suits for the sale of property or specific performance of a contract .
• Pre-emption and Mortgages: Suits for pre-emption rights and mortgage disputes .
• Leases and Easements: Cases involving leases or easements .
• Maintenance Charges: Suits for maintenance where a charge is created on a specific immovable property .
• Declarations and Injunctions: Suits for the declaration of a charge upon specific immovable property and suits for injunctions .

Non-Application to Specific Rights:

• Non-Specific Property Claims: The doctrine does not apply to suits where no specific property is charged or involved, such as:
• General Maintenance: Maintenance suits without a specific property charge .
• Monetary Claims and Rent: Claims for money or rent where no immovable property is directly involved .
• Movable Property: Cases involving movable property, such as standing timber or pledges of ornaments .

Direct and Specific Disputes:

• Requirement of Specific Dispute: For the doctrine to apply, the right to specific immovable property must be directly and specifically in question in the suit. Mis-descriptions in pleadings generally prevent the doctrine’s operation unless the property is still sufficiently identifiable despite the mis-description or deliberate omission .
• Amendments to Pleadings: If property is included in a plaint through a subsequent amendment, but was purchased by a bona fide purchaser before the amendment without notice of the defect in title, the doctrine does not apply .

Immovable Property Focus:

• Exclusive to Immovable Property: The doctrine of lis pendens exclusively applies to immovable property. It does not cover suits involving only movable property .

Conclusion

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, applies to suits where specific rights in immovable property are directly and specifically in question. It does not extend to cases involving general claims, non-specific property rights, or movable property. Proper identification of the property and the nature of the rights involved are crucial for the doctrine’s application, ensuring that transfers during litigation are regulated to uphold the litigation’s outcome.

Question: How does the doctrine of lis pendens apply to transfers and mortgages under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens, under Section 52 of the Transfer of Property Act, 1882, ensures that any transfer of property during the pendency of a legal suit regarding that property is subject to the outcome of the litigation. This doctrine is crucial in maintaining the status quo of the property in question, preventing any changes that might affect the rights of the parties involved in the suit.

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Definition of Transfer:

• Inclusion of Absolute and Partial Transfers: The term “transfer” includes both absolute and partial transfers, such as sales, grants under leases (including those created by a mortgagor), transfers by way of mortgage, exchanges, and oral gifts under Muslim law .
• Court-Permitted Transfers: Transfers made with the court’s permission and in accordance with its terms are not subject to the rule of lis pendens .

Application to Mortgages:

• Mortgage as a Transfer: The term “transfer” encompasses mortgages. A mortgage effected on property that is the subject of litigation is subject to the rule of lis pendens .
• Rights in Immovable Property: A suit for mortgage directly and specifically involves a right in immovable property. Therefore, a transferee pending a suit to enforce a mortgage right is subject to the doctrine of lis pendens .
• Prevention of Lease Creation: The rule of lis pendens prevents a mortgagor from creating any lease during the pendency of a mortgage suit that would affect the rights of the mortgagee or purchaser. A mortgagee who purchases mortgaged property in execution of his mortgage decree can avoid transfers made by the mortgagor during the pendency of the suit .
• Deposit of Title Deeds: If land is mortgaged by the deposit of title deeds and sold during the pendency of litigation (e.g., a suit for foreclosure), the sale is hit by the doctrine of lis pendens .
• Granting Leases During Pendency: If a mortgagor grants a lease during the pendency of the suit, the auction purchaser’s rights against the lessor are superior unless the lessee joins the suit as a party and seeks an opportunity to redeem the property .
• Purchasing Right of Redemption: A person purchasing the right of redemption during a foreclosure proceeding is affected by the rule of lis pendens .

Conclusion

The doctrine of lis pendens applies broadly to various forms of transfers and mortgages, ensuring that the status of immovable property involved in litigation remains unchanged pending the outcome of the suit.

This doctrine protects the interests of parties involved in the litigation by preventing any alterations that might affect their rights. Specifically, the doctrine encompasses absolute and partial transfers, including sales, leases, and mortgages, and it applies to any transfer made without the court’s permission during the pendency of a suit involving the property.

Question: How does the rule of lis pendens apply to transfers and rights created before the filing of a suit under Section 52 of the Transfer of Property Act, 1882?

Answer

Introduction

The doctrine of lis pendens, outlined in Section 52 of the Transfer of Property Act, 1882, prevents the transfer or dealing of property involved in litigation from affecting the rights of the parties involved. This doctrine, however, has specific applications regarding transfers and rights created before the filing of a suit.

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Rights Created Before the Filing of the Suit:

• Transfers Made Before Filing: Transfers made or rights created under a transfer before the suit is filed, or a deed of transfer registered after but executed before the filing of the suit, are not affected by the rule of lis pendens .
• Enforcement of Pre-Existing Rights: Rights that existed prior to the institution of the suit or acquisitions of property partly before and partly after the suit are not affected by lis pendens.
• Document Capable of Taking Effect in Law: The rights must be created with a document capable of taking effect in law. For instance, a lease executed for more than a year without a registered document is not effective in law and would not be considered a transfer creating any rights in favor of a third party.

Supreme General Films Exchange v. Brij Nath Singh Deo:

• Case Summary: In this case, A borrowed a sum of money from B, mortgaging an immovable property (a theater). A suit was filed in 1954, and a compromise was reached in 1960, stipulating the sale of the theater to repay the loan. The theater was occupied by a tenant under an unregistered lease deed since 1940, which expired in 1946. A registered lease deed was executed in 1956 in favor of the tenant during the pendency of the litigation.
• Court’s Decision: The Supreme Court held that the lease executed in 1956 created a new interest in the property, and since it was executed during the pendency of the litigation, it was hit by the rule of lis pendens. The tenant had to vacate the premises as the earlier right was not legally effective.

Proof of Filing and Transfer Timing:

• Same-Day Filing and Transfer: When the filing of the suit and the transfer of the suit property occurs on the same day, there is no presumption that the suit was filed earlier. The onus is on the person who wants the benefit of lis pendens to prove the suit was filed before the transfer.
• Time-Barred Pre-Existing Right: A suit to enforce a time-barred pre-existing right is considered the creation of a new right and is subject to lis pendens.

Right of Pre-emption:

• Preferential Right: A right of pre-emption, which gives a preferential right to a person to have a transfer effected in their favor, involves a specific right in immovable property and is covered under Section 52.
• Transfer During Pre-emption Suit: The transfer of property during a suit for pre-emption, including resale to the transferor by the transferee, is hit by the rule of lis pendens unless the purchaser has a superior or equal right of pre-emption.

Or Otherwise Dealt with:

• Inclusion of Partition: The term “or otherwise dealt with” includes cases of partition. Therefore, partition of the property during litigation is subject to the rule of lis pendens.
• Other Dealings: This term also covers contracts for sale, releases, or surrenders but does not include forcible taking of possession. Creation of tenancy rights during a suit for partition between coparceners would also be subject to the rule.

Conclusion

The rule of lis pendens applies to prevent changes in the status of property involved in litigation, ensuring that any rights created before the filing of a suit are protected. Transfers made or rights created under legally effective documents before the filing of the suit are not affected by the rule. However, any new interests created during the pendency of the litigation, without proper documentation or registration, are subject to the doctrine of lis pendens, safeguarding the rights of the parties involved in the suit.

Question: How does the rule of lis pendens apply to the transfer of immovable property, specifically in the context of partition suits in joint Hindu family property?

Answer

Introduction

The rule of lis pendens, enshrined in Section 52 of the Transfer of Property Act, 1882, ensures that any transfer of property involved in litigation does not affect the rights of the parties involved in the suit. This doctrine is particularly significant in cases of partition of joint Hindu family property, where the transfer or dealing of property during pending litigation is subject to specific rules.

Main Body

Partition and Rule of Lis Pendens:

• Nature of Partition: While partition of joint Hindu family property does not amount to a transfer, it is covered under the expression “or otherwise dealt with.” A partition suit involves rights in specific immovable property, meaning any transfer of property when a suit for partition is pending is subject to the rule of lis pendens.
• Involvement of Rights in Immovable Property: If one of the coparceners files a suit for partition, any subsequent mortgage, sale of property by the karta, or sale by one coparcener to a stranger, will be affected by the rule of lis pendens.

Case Law: Jayaram v. Ayyasami:

• Case Summary: A, the karta of a joint Hindu family, comprised his brother B and their sons. B filed a suit for partition against A. During the pendency of this suit, A sold a portion of the joint family property to his son-in-law to satisfy pre-existing personal liabilities and another portion was sold through auction for realization of dues under the Land Improvement Loans Act, 1883.
• Contentions and Issues: B challenged both sales under the rule of lis pendens, arguing that his rights in the property should not be subordinate to the seller, especially as the sales were for A’s personal liabilities and the loan was only partially used for land improvement.
• Court’s Decision: The Supreme Court held that any land shown to be improved by a loan taken would be excluded from the purview of the doctrine of lis pendens. The court determined that an involuntary sale would bind only the share of the karta (A) and not the shares of other family members not party to the sale.

Key Points from the Judgment:

• Application of Doctrine of Lis Pendens: The court applied the doctrine to both sales, concluding that the sales would bind only A’s share, not affecting B and his sons. The purpose of Section 52 is to subject claims to the authority of the court dealing with the property, rather than defeating just and equitable claims.
• Principle of Exclusion: The court emphasized that any land improved through a loan would be excluded from the doctrine’s purview, ensuring that only the share of the party directly involved in the loan or sale would be bound.

Conclusion

The rule of lis pendens plays a crucial role in protecting the rights of parties involved in partition suits within joint Hindu families. It ensures that any transfer or dealing with the property during the pendency of a suit does not unfairly affect the rights of other coparceners. The doctrine binds only the share of the party involved in the transfer or dealing, safeguarding the equitable claims of other family members.

Question: How does the doctrine of lis pendens apply to transfers of property made by parties to the suit during pending litigation?

Answer

Introduction

The doctrine of lis pendens, under Section 52 of the Transfer of Property Act, 1882, prevents the transfer or dealing of property involved in litigation. This principle ensures that the outcome of the litigation is not affected by any actions of the parties during the pendency of the suit. The application of this doctrine has specific implications for transfers made by parties to the suit and their representatives.

Main Body

Application to Parties to the Suit:

• Scope of Application: The prohibition against transferring or dealing with the property applies to parties involved in the suit, including the plaintiff, the defendant, and their legal representatives upon their demise. This means any transfer or dealing by these parties during the litigation is subject to the rule of lis pendens.
• Effect of Alienation by Third Parties: If the alienation is by a third party who is not a party to the suit, the doctrine does not apply. For instance, a transfer made by a person before becoming a party to the suit is not affected by lis pendens.

Case Example:

• Illustrative Scenario: If A, the owner, allows B to manage the property, and B sells it to C, but A files a suit against B for reclaiming the property and fails to include C as a party. If C sells the property to D during the suit, this sale will not be hit by lis pendens since C was not a party to the original suit.
• Bengal Ambuja Housing Development Ltd v. Pramila Sanfui: In this case, the court held that a temporary injunction could only be granted against parties to the suit property. Therefore, the sale of the suit property by heirs who were not parties to the suit was not affected by Section 52.

Decision Binding on the Alienee:

• Judgment Binding on Transferees: Ordinarily, a judgment binds only the parties to the suit. However, anyone who purchases the property during the pendency of the action is bound by the judgment against the person from whom they derive title, irrespective of notice. This makes the sale pendente lite subordinate to the rights based on the decree in the suit.
• No Need to Implead Transferees: Parties affected by a transfer during litigation are not obligated to implead the transferee as a party to the litigation. The lis pendens transferee is bound by the court’s decree, regardless of whether it was granted on contest, ex-parte, or on compromise.

Status of the Transfer:

• Prohibitive Language: Section 52’s language is prohibitive, stating that the property cannot be transferred or otherwise dealt with. However, a transfer pendente lite is not void but subject to the outcome of the litigation. The transfer is voidable at the instance of the affected party, except where it conflicts with rights decreed as valid.
• Legal Standing of Transferee: The transferee takes the title of the transferor subject to the result of the pending litigation. The rule does not annul the conveyance but renders it subservient to the rights of the parties to the action as determined by the decree. The doctrine aims to maintain status quo, ensuring the authority of the court over claims on the property.
• Judicial Interpretations: In Haji Abdul Mateen v. Sheikh Haji Firozuddin, the Delhi High Court held that a transfer pendente lite is void against the successful plaintiff, and the transferee cannot claim protection under Section 52.

Conclusion

The doctrine of lis pendens is crucial in protecting the interests of parties involved in litigation concerning immovable property. It ensures that any transfer or dealing with the property by parties to the suit during its pendency does not affect the rights of the other parties involved. This doctrine maintains the authority of the court and upholds the integrity of the litigation process, ensuring that the final decree is effective against any transfers made during the pendency of the suit.

Question: What is the right of an alienee pendente lite to be impleaded as a party to the lis?

Answer

Introduction

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, mandates that property involved in litigation cannot be transferred during the pendency of the suit without affecting the outcome. The question arises whether an alienee pendente lite, who acquires the property during the litigation, has the right to be impleaded as a party to the suit.

Main Body

General Rule:

• Non-Impleadment: The predominant view is that a transferee pendente lite cannot seek impleadment if the transfer was made during the pendency of the appeal without the court’s permission and with knowledge of an existing status quo order . The petitioner in the suit (dominus litus) decides the course of litigation and can take calculated risks. The court may not exercise discretion to implead the alienee if the petitioner does not wish it .
• Lack of Independent Rights: The alienee cannot claim any rights over the suit property beyond those of the seller (transferor) who is a party to the lis . The transferee of a judgment debtor during the pendency of proceedings cannot be considered as having resistance or obstruction in his own right .

Case Law and Judicial Pronouncements:

• Apex Court’s View: The Supreme Court has held that a transferee pendente lite without court permission takes the risk of being bound by the litigation’s outcome, even if not represented at the hearing, unless the litigation was improperly conducted or there was collusion .
• Delhi High Court’s Observation: The court stated that a transferee pendente lite has no right to be impleaded because they are bound by the decree passed against the transferor . Applications for impleadment by transferees during appeal pendency without court leave are typically rejected .
• Karnataka High Court: A transferee pendente lite is not entitled to join the record as a matter of right and is bound by the decree as much as the original parties to the suit .

Exceptions and Discretionary Impleadment:

• Orissa High Court’s Full Bench Decision: Although there’s no necessity for a transferee pendente lite to be impleaded, the court can exercise discretion to allow it, particularly to prevent the original party from losing interest post-transfer and to ensure justice .
• Multiplicity of Proceedings: The court may allow impleadment to avoid multiple litigations, ensuring the alienee can protect their interest and avoid conflicting rulings . The transferee steps into the shoes of the assignor and inherits the legal rights and obligations determined by the court .

Specific Cases:

• Gujarat High Court: A transferee during a partition suit has no independent right over the seller’s right. However, they can seek impleadment to protect their interest and avoid subsequent litigation .
• Thomson Press (India) Ltd v. Nanak Builders & Investors: The Supreme Court held that granting permission to a transferee to step into the shoes of the original party would balance the rival claims without affecting the plaintiff’s rights .
• Distinction by Andhra Pradesh High Court: The court distinguished between a transferee from a plaintiff and a transferee from a defendant, stating that a transferee from a plaintiff may seek impleadment with court leave, while a transferee from a defendant may be bound by the decree if the suit is decreed in favor of the plaintiff .

Conclusion

The right of an alienee pendente lite to be impleaded as a party to the lis is generally restricted and is not an automatic right. The court’s discretion plays a crucial role, balancing the interests of justice and preventing multiplicity of proceedings. While the predominant view limits impleadment to avoid disruption in litigation, there are scenarios where courts may exercise discretion to allow impleadment, particularly to protect the alienee’s interests and ensure fair trial proceedings.

Question: What is the right of any other party under the decree in the context of the doctrine of lis pendens?

Answer

Introduction

The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, ensures that any property involved in litigation cannot be transferred during the pendency of the suit to avoid affecting the outcome. This doctrine protects the rights of other parties involved in the litigation.

Main Body

Scope of “Any Other Party”:

• The doctrine applies not just to actual transfers but also to other dealings with the property by any party to the suit or proceedings that might affect the rights of any other party. The term “any other party” refers to a person between whom and the party alienating the property there is an issue for decision that might be prejudiced by the alienation .
• The rule of lis pendens benefits third parties, not the party making the transfer. This statutory right allows a party to the suit, other than the alienating party, to have an alienation set aside as necessary for the protection of their own rights .

Application to Sale Deeds and Specific Relief:

• The doctrine of lis pendens also applies to the registration of a sale deed subsequent to the filing of a suit. Subsequent purchasers cannot claim the benefit of Section 19(b) of the Specific Relief Act, 1963, which protects the rights of bona fide purchasers for value without notice of the original suit .

Injunction Restraining Transfer Pendente Lite:

• While Section 52 provides adequate protection from transfers pendente lite, temporary injunctions restraining such transfers are generally unnecessary. Invoking the powers under Order XXXIX, Rules 1 and 2 of the CPC for a temporary injunction is only warranted in rare cases where the plaintiff demonstrates that the rule of lis pendens is inadequate to protect their interests .
• When considering a temporary injunction, the court must assess the prima facie case, balance of convenience, and irreparable loss and injury. For example, in Santokh Singh v. Shagun Farm Pvt. Ltd., the court denied a temporary injunction due to unusual delay by the plaintiff and the remote chance of obtaining a suit for specific performance, thereby making the principle of lis pendens inapplicable .

Challenge to Court Orders by Transferees Pendente Lite:

• A transferee pendente lite cannot challenge or obstruct the execution of a court order. They cannot question the legality of the decree or the court’s propriety in passing such a decree. For instance, if a suit for recovery of possession is decreed in favor of a plaintiff and resisted by a transferee pendente lite during execution, the transferee’s challenge would be dismissed .

Doctrine of Lis Pendens and Res Judicata:

• The doctrines of lis pendens and res judicata do not apply if the earlier suit was dismissed for default and no issue was finally decided. In Marakkal v. SG Kannappan, the suit pending during the transfer was dismissed for default, and since no right was decided in favor of the appellants, the transfers pendente lite were deemed valid .

Conclusion

The doctrine of lis pendens serves to protect the rights of parties other than the alienating party during the pendency of litigation. It ensures that any dealings with the property do not affect the outcome of the litigation or prejudice the rights of other parties involved. Temporary injunctions are rarely necessary, and transferees pendente lite cannot challenge court orders or obstruct the execution of decrees. Furthermore, if an earlier suit is dismissed for default without a final decision on issues, the doctrines of lis pendens and res judicata are inapplicable, validating transfers pendente lite.