Section 39 of Code of Civil Procedure 1908 “Transfer of decree”

(1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court [of competent jurisdiction],

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

1[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]

2[(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

As a general rule, the Court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court either suo moto or on the application of the decree-holder if any of the following grounds exist , the court sending the decree must send a copy of decree and other documents mentioned in Order –XXI ,rule -6 to the court by which the decree is to be executed.

The judgment-debtor actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such court; or

The judgment-debtor does not have any property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of the jurisdiction of such other court; or

The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or

The Court which passed the decree considers for any other reason to be recorded in writing, that the decree should be executed by such other court.

The transferee Court gets jurisdiction to execute the decree only when there is an order of transfer of decree by the court which passed the decree. After the transfer of a decree . The transferee court has all the powers to execute the decree as if it had been passed by the transferee court .

Provision of the Code relating to execution apply to orders passed by the Family Courts.

Territorial Jurisdiction is a condition precedent to a court executing a decree. If the decree directs the sale of immovable property within the territorial limits of the jurisdiction of another court , it must be sent to that court for execution.

The Code does not prevent the decree holder from executing the decree simultaneously at more than one place against the property of the judgment debtor.

The whole decree must be transferred . A part of the decree cannot be sent to another court for execution.

After the addition of sub section (4) by the amendment act of 2002 , it is now mandatory for the Executing Court to transfer the decree , if the court has no jurisdiction on the immovable property of the judgment debtor.

Section 40 of Code of Civil Procedure 1908 “Transfer of decree to Court in another State”

Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.

Section 41 of Code of Civil Procedure 1908 “Result of execution proceedings to be certified”

The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

Section 42 of Code of Civil Procedure 1908 “Power of Court in executing transferred decree”

(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons is disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had passed by itself.

2[(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely: –

(a) power to send the decree for execution to another Court under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely:-

(a) power to order execution at the instance of the transferee of the decree ;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b),or clause (c), of sub-rule (1) of rule 50 of Order XXI.]
(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely:-

(a) power to order execution at the instance of the transferee of the decree ;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b),or clause (c), of sub-rule (1) of rule 50 of Order XXI.

Section 40 – 42

Section 40 to 42 of the code only prescribe the procedure for executing the decree passed by one courts transmitted to the transferee court for execution and these section do not make any substantive law.

Under the Section 41 , the court of execution must certify the result of the execution to the court passed the decree and transferred it for execution.

The certificate required by this section enjoins the transferee court to apply its mind and affirm the statement of fact that the execution was either made or could not be made after bona fide efforts to do so. The provisions of this section are mandatory and therefore the transferee court has to strictly adhere to them

Section 42

The Jurisdiction of the transferee court is limited to the execution of the decree transferred to it and its power are limited in the same way as if it were its own decree. It cannot entertain an objection as to the legality or correctness of the decree or that the decree is defective.

After transferring a decree to another court for execution , the court which passed the decree cannot itself execute it and an application for execution made to it after the transfer and before a certificate of non- satisfaction under Section 41 has been returned, is not even a step in aid of execution so as to save limitations.

Section 43 of Code of Civil Procedure 1908 “Execution of decrees passed by Civil Courts in places to which this Code does not extend”

Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.

Under this Section , read with sections 44 and 45 , the Indian courts have poers,

1.To execute decrees of those Indian Courts to which the code does not apply , such as schedule districts.

2.To execute decrees of civil courts outside India , which are established by the authority of the Central Government.

3.To execute the decrees of revenue courts in any parts of India to which the provisions of the code do not apply

4.To execute decrees of Indian Courts in the State to which the state government has notified that section 45 would apply.

Section 44 – “Execution of decrees passed by Revenue Court in places to which this Code does not extend”

The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.

Section – 44 must be read with Section – 5 , which defines the Revenue Court.

Section 45 of Code of Civil Procedure 1908 “Execution of decrees outside India”

Section – 44 must be read with Section – 5 , which defines the So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established 2 *** by the authority of the Central Government 3 [outside India] to which the State Government has by notification in the Official Gazette declared this section to apply. Revenue Court.