9. LIS PENDENS
LIS means Litigation and Pendens means Pending. Hence lis pendens would mean Pending Litigation.The Doctrine of Lis Pendens is expresses in the well-known maxim “Pendent elite nihil innovature”, which means ‘ during pendency of litigation, nothing new should be introduced ‘. Under this doctrine, it provided that during pendency of any suit regarding title of a property, any new interest in respect of that property should be created. Creation of new title or interest is known as a transfer of property. Therefore, in essence, the doctrine of lis pendens prohibits he transfer of property Pending litigation.
The basis of lis pendens is ‘necessary’ rather than actual or constructive Notice. This Doctrine is based on Notice because a pending suit is regarded as constructive notice of the fact of disputed title of the property under litigation.
The doctrine of Lis pendens as laid down under Section 52 of Transfer of Property Act, 1882 Is given below :
1. During the Pendency of a suit proceeding
2. Property Cannot be transferred or otherwise dealt with, and
3. If so transferred, the transferee is bound by the decision of the
court whether or not he had notice of the suit or proceeding.
Non-Applicability Lis pendens in below mentioned cases :
This does not apply when the property is not described correctly, making it unidentifiable.
In case of maintenance suit, where the property is mentioned only so that maintenance payments can be determined transparently; the Doctrine does not apply when a right to the said immovable property is not directly in question and alienations are thereby permitted.
The Doctrine fails to apply, when a Court orders restoration of immovable property under Order 21, Rule 63 of the Civil Procedure Code.
This does not apply to a private sale by a creditor who holds the right to dispose of the property that is mortgaged to it even when the borrower has a redemption suit pending.
