Lis pendens transfer
sridhar pasumarthy
(Querist) 23 February 2012
This query is : Resolved
Respected experts,
I require your clarification for the following query. Though it appears to be academic, it arose in a case, which now i am dealing with at present. So, please answer it treating the same as a query on behalf of my client.
X filed a suit against Y seeking declaration of the title with respect to an immovable property. During pendancy of suit, Y sold away the suit schedule property to Z. Now Z is making constructions in the said property. At this stage, X filed an I.A. seeking ad-interim injunction to restrain Y from making constructions over the suit schedule property.
Another thing is X also filed an application seeking to implead Z as a party to the suit and the same is pending and coming up for service of notice to Z.
My question is:-
1.Having admitted in his affidavit in injunction application about lis pendens transfer of property from Y to Z, is X entitled to seek interim injunction against Y alone without showing Z as respondent(who in fact making constructions over the property)?
please explain.
sridhar pasumarthy
(Querist) 23 February 2012
Suppose, if Z makes constructions, what is the remedy for X, if he ultimately succeeds in the suit?
Adv.R.P.Chugh
(Expert) 23 February 2012
Dear Sridhar,
A couple of things - first of all the suit may run foul of Proviso to S.34 of the Specific Relief Act - since it seems you have not asked further relief - of possession.
The Lis pendens transferee's rights are subject to the result of this case and he claims through Y - any injunction order would equally bind him, even though not formally on record. However in the fitness of things - it is better to implead him - so as to avoid complications at the time of execution. Ad-Interim Mandatory Injunction can be sought against him - asking him to take down the construction already done and prohibitive so as to prevent future constructions.
Adv.R.P.Chugh
(Expert) 23 February 2012
Dear Sridhar,
A couple of things - first of all the suit may run foul of Proviso to S.34 of the Specific Relief Act - since it seems you have not asked further relief - of possession.
The Lis pendens transferee's rights are subject to the result of this case and he claims through Y - any injunction order would equally bind him, even though not formally on record. However in the fitness of things - it is better to implead him - so as to avoid complications at the time of execution. Ad-Interim Mandatory Injunction can be sought against him - asking him to take down the construction already done and prohibitive so as to prevent future constructions.
