Transfer of Property Act (TPA)
Lis Pendens vs Res Judicata: The Doctrine That Operates During the Suit, and the One That Operates After It
Both doctrines exist so that litigation can come to a useful end, and both bind people who were never heard in the case. There the similarity stops. Lis pendens works while the suit is running, and it operates on the property: a transferee takes subject to the decree. Res judicata works after the decision, and it operates on the dispute: the same issue may not be raised again between the same parties. One keeps the subject matter within reach; the other stops the argument being reopened.
Figure 1: The gavel raised and the gavel fallen, and the two doctrines compared
1. The Two Provisions
Where each is found Lis pendens — section 52, Transfer of Property Act, 1882. During the pendency of a non-collusive suit or proceeding in which a right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party so as to affect the rights of any other party under the decree, except under the authority of the court. Res judicata — section 11, Code of Civil Procedure, 1908. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit, and has been heard and finally decided by that court. |
2. The Comparison
Point | Lis pendens — s. 52, TPA | Res judicata — s. 11, CPC |
|---|---|---|
When it operates | During the pendency of the suit or proceeding | After a final decision |
What it governs | Dealings with the property in question | The re-litigation of an issue or claim |
Whom it binds | A transferee pendente lite, though a stranger to the suit | The parties, and those claiming under them, litigating under the same title |
Its object | To keep the subject matter within the court's reach so that the decree is effective | To make an end of litigation once it has been decided |
Effect on the transaction or suit | The transfer stands, but is subject to the decree | The later suit or issue is barred altogether |
Notice or knowledge | Irrelevant | Irrelevant — the bar operates by reason of the earlier decision |
Type of property | Immoveable property | Any subject matter |
Underlying principle | Ut lite pendente nihil innovetur — necessity, so that the court's process is not defeated | Nemo debet bis vexari pro una et eadem causa, and the public interest in finality |
3. Where the Two Meet
A transferee pendente lite is affected by both. Section 52 makes his purchase subject to the decree. And because he claims under a party to the suit, he is treated as a representative-in-interest, so the decision binds him for the purposes of res judicata as well. This is why he is generally not permitted to reopen in a later suit questions that were decided in the suit during which he bought.
- He may apply to be joined. Under Order 22 Rule 10 of the Code, where an interest devolves during the pendency of a suit, the suit may be continued by or against the person on whom it has devolved, with the leave of the court. A prudent pendente lite purchaser applies at once.
- He is not entitled to be joined as of right, and the court may take the view that his interests are sufficiently represented by his transferor.
- Whether he applies or not, he is bound. Section 52 does not require him to be on the record for the decree to affect the property in his hands.
4. Worked Contrasts
The facts | Which doctrine, and the result |
|---|---|
A sues B for possession of land; during the suit B sells to C; A obtains a decree | Lis pendens — the sale is good between B and C, but A's decree binds the land in C's hands |
A's suit against B is dismissed; A sues B again on the same cause of action | Res judicata — the second suit is barred by section 11 |
A's suit against B is decreed; C, who bought from B during the suit, sues A raising the same issues | Both — C is bound by the decree under section 52, and as a person claiming under B he is met by res judicata |
B sells to C before the suit is filed | Neither doctrine applies to the sale; A must sue C, or make him a party |
The suit between A and B was collusive | Section 52 does not apply; and a collusive decree does not operate as res judicata |
5. Why Both Are Needed
- Res judicata alone would not protect the plaintiff. It bars a second suit, but it does nothing to stop the property being sold during the first.
- Lis pendens alone would not end the dispute. It subordinates the transfer, but it says nothing about whether the same questions may be raised again.
- Together they make a decree effective and final. One secures the subject matter during the contest; the other closes the contest for good.
Retention aid Gavel raised, gavel fallen. While the gavel is up, the property may not be dealt with so as to affect the decree; once it has fallen, the dispute may not be reopened. One is in the Transfer of Property Act, the other in the Code. |
6. Landmark Cases
📖 Rajender Singh v. Santa Singh, (1973) 2 SCC 705 Held: A transferee pendente lite is bound by the decree, although he was not a party to the suit, because he claims under a party; the object of the doctrine is to maintain the status quo so far as dealings with the property are concerned while the court is seised of the matter. Ratio: The transferee is treated as claiming under his transferor, and is bound accordingly. |
7. Related Topics and Provisions
- Doctrine of Lis Pendens, Section 52 — the essentials and the effect
- Lis Pendens and Execution Proceedings — how far the pendency runs
- Lis Pendens vs Notice — why knowledge is irrelevant to both
- Section 11, Code of Civil Procedure, 1908 — res judicata
- Order 22 Rule 10, Code of Civil Procedure, 1908 — devolution of interest during a suit
- Bona Fide Purchaser During Pendency of Suit — the transferee's position