Introduction
The doctrine of lis pendens has widely operated as a stabilising principle in Indian property jurisprudence. Enshrined in Section 52 of the Transfer of Property Act, 1882, it restrains parties to a suit from transferring immovable property over which substantial rights are in dispute, ensuring that pending litigation cannot be undermined by private transfers carried out while the matter remains before a court. The Explanation to Section 52 defines this pendency broadly: it begins with the presentation of the plaint and continues until the suit is disposed of by a final decree, and until that decree is satisfied or becomes incapable of execution due to limitation. The provision rests on two policy considerations. Firstly that avoiding a multiplicity of proceedings that would arise if parties could engineer transfers to circumvent litigation, and secondly safeguarding the legitimate expectations of third-party purchasers who transact in apparent reliance on the conclusion of a case.
These competing concerns sharpen considerably where the formal markers of pendency appear to lapse temporarily, as happens when a suit or appeal is dismissed for default under Order IX of the Code of Civil Procedure and subsequently restored. It is needed to distinguish the two procedural tracks i.e. a suit dismissed for default of appearance falls under Order IX and is restored on a showing of sufficient cause, while an appeal dismissed for non-prosecution falls under Order XLI Rule 17 and is restored not under Order IX but through an application for re-admission under Order XLI Rule 19. Both regimes nonetheless apply the same sufficient-cause standard.
The central question is whether a transfer executed in the interval between dismissal and restoration should be treated as pendente lite. The issue first arose squarely before the Bombay High Court in the 1958 case of Krishnaji Pandharinath v. Anusayabai (“Krishnaji”), where the defendant sold the suit property two days after a default dismissal. The plaintiff later secured restoration and a decree, and sought to enforce it against the purchaser. The Court held that dismissal for default does not terminate the lis for Section 52 purposes, since the Explanation ties termination only to final disposal and satisfaction of the decree, not to an interim procedural lapse, a reading that also forecloses any incentive for litigants to engineer a default dismissal merely to place a transfer beyond the doctrine’s reach.
This question has since generated considerable judicial divergence. This article traces the resulting tension between the Bombay High Court and the Supreme Court, culminating in a recent Bombay High Court judgment that brings this doctrinal disjunction into sharp relief, before proposing a way to reconcile the competing imperatives of transactional certainty and protection of litigants.
Subsequent development and Opposing Views
As litigation became more complex, intermediate procedural orders such as dismissal for non-prosecution became more common. This is because such dismissals again have come under judicial scrutiny as to whether they should interrupt pendency for the purpose of lis pendens.
The turning point was a Divison Bench decision of the Bombay High Court in 2010 in the case of Primella Sanitary Products v. Gurudas Gaitonde (“Primella”).[1] Two opinions were rendered. The primary view rejected the automatic use of lis pendens during the dismissal-restoration gap, claiming that third-party buyers require transactional certainty and that an indefinite extension of pendency could undermine market stability. It therefore departed from the stricter interpretation adopted in Krishnaji and declined to hold that the period was part of the lis.
The concurring judge agreed with the ultimate outcome but expressly disagreed on this point. He viewed dismissal for default as merely a procedural interruption, not a substantive termination, and considered restoration to retrospectively cure the dismissal and revive pendency throughout the intervening period.[2]
This fractured reasoning created interpretive uncertainty. Although Primella did not overrule Krishnaji, later benches increasingly relied on the narrower approach adopted in the main opinion.
Consolidation by the Supreme Court
The Supreme Court subsequently revisited the issue through a series of decisions that substantially reaffirmed the broader understanding of lis pendens articulated in the Krishnaji case. In Jagan Singh v. Dhanwanti, the Court reproduced and relied upon the operative reasoning of Krishnaji while holding that transfers effected after dismissal of a suit, but before expiry of the appeal period, remained subject to Section 52. The Court treated dismissal not as a conclusive termination of litigation, but as an incomplete procedural stage so long as statutory remedies continued to survive. The continued availability of appellate recourse was therefore sufficient to preserve the lis.
A similar approach informed the decision in Kirpal Kaur v. Jitender Pal Singh. There too, the transfer had been executed after dismissal but before the litigant’s right to continue proceedings had extinguished. The Court held that the transfer attracted the doctrine of lis pendens because the litigation had not attained substantive finality. The emphasis, once again, was not merely on the technical status of the suit, but on the continued legal possibility of reviving or carrying forward the proceedings.
Characterising dismissal as provisional rather than conclusive is not just a turn of phrase as it tracks a real deadline. Article 122 of the Limitation Act, 1963 gives a party thirty days from the date of dismissal to apply for restoration, extendable only on a showing of sufficient cause for the delay, and it is the survival of this right within that window, not some open-ended possibility of revival, that keeps a default dismissal from hardening into the finality the Explanation to Section 52 has in mind. Once the thirty days pass without a restoration application, or such an application is finally rejected, the position changes: the dismissal becomes conclusive, and any transfer made thereafter falls outside Section 52. Limitation, then, is what gives the “provisional rather than conclusive” idea a real edge, turning it into a workable test rather than an indefinite extension of pendency.
Taken together, these judgments appeared to firmly endorse the continuity-based approach developed in Krishnaji. The governing principle that emerged was that procedural interruptions do not sever the lis where the litigant retains a statutory right to revive, restore or continue the proceedings. In substance, the Supreme Court’s jurisprudence treated dismissal for default as provisional rather than conclusive.
The Recent Revival of the Narrower Approach and the Resulting Doctrinal Gap
However, the issue resurfaced in 2025 before the Bombay High Court in Uttam Vs. Gitabai and Ors. The Court relied mainly on Primella and noted that a transfer made following the dismissal of an appeal for non-prosecution but prior to its restoration would not attract the doctrine of lis pendens. It did so despite the Supreme Court’s repeated reaffirmation of the broader approach and its favoring of the narrower conception of pendency.
Therefore, there is a renewed doctrinal schism. Judicial treatment of property transactions in Maharashtra now suffers from inconsistency, depending on the line of authority being followed. Procedural dismissals may assist litigants in effectuating transfers that are insulated from pending claims, and bona fide purchasers may find their titles vulnerable if courts adopt the broader interpretation. Such uncertainty risks fairness in the adjudication process and stability in the property markets.
A Principled Path Toward Reconciliation
Thus, a principled resolution must balance the protective purpose of section 52 with the legitimate need for transactional certainty. A purposive interpretation is strongly inclined towards the wider approach. The doctrine of lis pendens is designed to prevent parties from thwarting pending litigation through alienation of the subject property. The default dismissal is subject to restoration by law. If the intervening period is regarded as outside the lis, it will lead to strategic procedural manoeuvring. A party could deliberately create dismissals in order to transfer property free from the risk of litigation, defeating the very object of section 52.
The mischief rule reinforces this conclusion. The real mischief lies in permitting procedural gaps to undermine substantive adjudication. Restoration proceedings are intended precisely to ensure that procedural default does not become a weapon against justice. Yet an entirely rigid application of lis pendens may also unfairly prejudice bona fide purchasers acting without notice. This calls for a calibrated solution rather than an absolute one.
A rebuttable presumption of lis pendens offers such a middle path. Transfers made after dismissal but before restoration or before the expiry of appellate remedies should generally be presumed to fall within the ambit of Section 52. At the same time, transferees establishing bona fide purchase without actual or constructive notice may be entitled to equitable protection by way of compensation, equitable liens or adjusted priorities.
These tools are not free-floating. “Adjusted priorities” is essentially what the Supreme Court did in the 2010 case of T.G. Ashok Kumar v. Govindammal upholding a pendente lite transferee’s title only to the extent the transferor’s own title held up, an approach courts can extend to the dismissal-restoration gap without fresh statutory authority. Compensation can draw on Section 51 of the Transfer of Property Act by analogy, while an equitable lien has no settled Indian counterpart and would have to be fashioned from courts’ restitutionary powers under Sections 144 and 151 of the Code of Civil Procedure.
Courts should also make fuller use of procedural safeguards such as impleadment under Order 22 Rule 10 and conditional restoration orders restricting alienation pending adjudication. Finally, legislative clarification by way of an amendment to Section 52 or its Explanation may be required to conclusively settle the uncertainty surrounding the intervals of dismissal restoration.
Conclusion
This dichotomy between dismissal and restoration has created considerable doctrinal friction within the law of lis pendens. The principle laid down in Krishnaji Pandharinath, and later reiterated by the Supreme Court, ensured that property rights could not be manipulated through procedural defaults. However, divergent interpretations in later High Court decisions, particularly in Primella, have reopened this debate and left practical uncertainty in their wake. A coherent approach is needed, one where courts recognise that the lis continues for as long as a statutory remedy like restoration remains available, while still using equitable tools to protect bona fide purchasers where appropriate. Such a balance, supported by purposive interpretation and the mischief rule, can preserve the stability of litigation without compromising fairness in property transactions. Until the legislature steps in to settle the position, careful judicial reasoning remains the only way to restore doctrinal harmony and ensure that the purpose of lis pendens is not defeated by mere procedural happenstance.
(This post has been authored by Rohit Misra, 5th Year student at National Law Institute University, Bhopal)
CITE AS: Rohit Misra, ‘Lis Pendens and the Dismissal Restoration Paradox’ (The Contemporary Law Forum, 08 July 2026) <https://tclf.in/2026/07/08/lis-pendens-and-the-dismissal-restoration-paradox/> date of access.