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Published : November 16, 2013 | Author : YSRAO JUDGE
Category : Civil Laws | Total Views : 7488 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Can the doctrine of lis pendens prevail over the rule of res judicata?

Lis pendens and res judicata are the Latin terms. It can be abbreviated as '' Lis pend'' . ''Lis'' means an action or a suit. ''pendens'' means is continuing or pending. It is thus known that Lis pendens means a pending action. More so, ''Lis alibi pendens'' means a suit pending elsewhere. ''Lis mota'' means a Court action that has set in motion.

One of the most common reasons to file a lis pendens is when a property goes into foreclosure. If a lender feels that a foreclosure will be necessary, the notice forestalls any attempts to sell the property to evade foreclosure, inasmuch as the legal notice will turn up on a title search. A lis pendens can also be filed if anyone thinks that he has a legal claim to title of the property, or in any other circumstances, where people want to question the validity of title of the property. Generally, buyers do not agree to purchase a property which is involved in a pending suit, or they are unable to secure a loan to buy the property because lenders are concerned about the outcome of the Civil case. In the case of a foreclosed property, once the foreclosure is complete, the lis pendens is canceled out.

The principle of res judicata is that when a matter has been finally adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged by the original parties or their successors in interest. res judicata is a word for a matter already adjudicated. It avoids unnecessary waste of resource in the judicial system. Litigants are being prevented by res judicata from multiplicity of proceedings. Identification of things at a suit, cause of action, same parties, final adjudication of the matter, former suit, if parties were given fair opportunity to be heard on the issues are some essential factors to attract res judicata.

In a case, Digambara rao Hanumanta rao Deshpande vs Ranga rao Reghunatha rao Desai, it was observed that the rule of res judicata prevails over the doctrine of lis pendens. The doctrine of lis pendens cannot prevail over the rule of res judicata. At the same time, the law of lis pendens is an extension of the law of res judicata and makes the adjudication in the suit binding on alienees from the parties pending suit, just as the law of res judicata the adjudication binding on the parties to the suit and on alienees from them after decree. The rule of lis pendens goes a step further and lays down that whoever purchases a property during pendency of an action, is held bound by the judgment that may be made against the person from whom he derived his title, even though such a purchaser was not a party to the action or had no notice of the pending litigation.

Mulling over all these facts, a fortiori, in view of the dicta observed in Official Assignee's case, cited supra, it is vividly known that the doctrine of lis pendens cannot prevail over the rule of res judicata.




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