Does the doctrine of lis pendens apply to an ex parte suit?

Question: Does the doctrine of lis pendens apply to an ex parte suit? [BJS 2018]

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Answer

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.

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 the property involved in a pending suit. The doctrine of Lis pendens is expounded in Section 52 of the Transfer Of Property Act 1882.

The doctrine of lis pendens, embodied in Section 52 of the Act, is founded on the maxim "ut lite pendente nihil innovetur" meaning that during litigation, no new elements should be introduced. Lord Chancellor Cranworth in Bellamy v. Sabine articulated the principle, asserting that lis pendens does not operate as notice but restricts litigants from conferring property rights that may prejudice the opposing party.

Meaning of Lis Pendens

Lis pendens, literally a pending suit, as per Section 52, prohibits the transfer or dealings with immovable property during a non-collusive lawsuit where the right to the property is directly and specifically in question. This restriction extends until the suit concludes, and no party can affect the rights of others under a subsequent decree or order without the court's authority.

The Supreme Court, in Jayaram Mudaliar v. Ayyaswami, AIR 1973 SC 569, defines lis pendens as the jurisdiction a court acquires over property involved in a pending suit until final judgment. This definition emphasizes the court's control over the subject matter to prevent litigants from rendering proceedings ineffectual by removing property from the court's jurisdiction.

Essential Conditions for Applicability

The Supreme Court, in Amit Kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209, restates the essential conditions for the rule of lis pendens:

a. Pending Suit or Proceedings: There must be a suit or proceedings before a competent court. The pendency starts from the presentation of the plaint and continues until the suit is disposed of, and satisfaction or discharge of the decree is obtained.

b. Non-Collusive Nature: The suit or proceedings must not be collusive, distinguishing between a collusive proceeding and a fraudulent one. While a collusive proceeding involves fictitious claims and unreal contests, a fraudulent suit involves an untrue claim but with a verdict obtained by practising fraud in the court.

c. Right to Immovable Property in Question: The litigation must directly and specifically question the right to immovable property.

d. Transfer of Property: There must be a property transfer in dispute by any party to the litigation.

e. Affecting Rights of Other Parties: Such transfer must affect the other party's rights that may accrue under the terms of the decree or order.

As observed in Digambarrao Hanmantrao v. Rangrao Raghunathrao Desai, (1949) 51 BOMLR 623, it is also settled law that in the absence of fraud or collusion the doctrine of Lis pendens applies to a suit, which is decided ex parte or by a compromise. Therefore, yes, the doctrine of lis pendens applies to an ex parte suit provided there was no fraud or collusion.