Bombay High Court: Transferee Pendente Lite Cannot Resist Execution of Decree for Specific Performance

• A transferee pendente lite may resist execution of a decree for specific performance by invoking Order 21 Rule 97 CPC and citing protection under Section 19(b) Specific Relief Act.
• However, this move is complicated by the doctrine of lis pendens embodied in Section 52 Transfer of Property Act, which renders transfers made during litigation subservient to the outcome of the suit.
• Lawyers advising clients on property transactions must carefully consider the interaction between Section 52 Transfer of Property Act, Order 21 Rule 97 CPC, and Section 19(b) Specific Relief Act to determine their client's exposure.

The doctrine thus emerged as a rule of public policy designed to preserve the authority of the court over the subject-matter of the dispute and to prevent multiplicity of proceedings.

A recurring problem arises when a judgment-debtor transfers disputed property to a third party during the pendency of a suit for specific performance. The subsequent purchaser claims to be a bona fide buyer, but the decree-holder seeks enforcement of the decree. This conflict raises questions about the finality of judicial proceedings and the protection of innocent purchasers. In one such case, the transferee pendente lite invoked Order 21 Rule 97 CPC to resist execution, citing Section 19(b) Specific Relief Act as a shield. However, this move was complicated by the doctrine of lis pendens embodied in Section 52 Transfer of Property Act, which renders transfers made during litigation subservient to the outcome of the suit. The interaction between these provisions presents a difficult question of law.

The doctrine of lis pendens has its roots in Roman law and is codified in India under Section 52 Transfer of Property Act, 1882. It emerged as a rule of public policy to preserve the authority of the court over the subject-matter of the dispute and prevent multiplicity of proceedings. The doctrine is founded on the maxim 'pendente lite nihil innovetur,' which means that nothing new should be introduced during the pendency of litigation. This principle is essential in preventing alienations made during litigation from prevailing, thereby allowing suits to reach a successful conclusion. However, the interaction between Section 52 Transfer of Property Act and Order 21 Rules 97-102 CPC presents a complex question of law.

The controversy surrounding transferees pendente lite has significant implications for lawyers advising clients on property transactions. They must carefully consider the interaction between Section 52 Transfer of Property Act, Order 21 Rule 97 CPC, and Section 19(b) Specific Relief Act to determine their client's exposure. A transferee pendente lite may resist execution of a decree for specific performance, citing protection under Section 19(b) Specific Relief Act. However, this move is complicated by the doctrine of lis pendens, which renders transfers made during litigation subservient to the outcome of the suit. Lawyers must navigate these complexities to ensure their clients' rights are protected.

Lawyers advising clients on property transactions should be aware that a transferee pendente lite may resist execution of a decree for specific performance, and must carefully consider the interaction between Section 52 Transfer of Property Act, Order 21 Rule 97 CPC, and Section 19(b) Specific Relief Act to determine their client's exposure.

Source: Original reporting via When Lis Pendens Defeats the Bona Fide Purchaser: Re-examining the Rights of Transferees Pendente Lite in the Execution of a Decree for Specific Performance