Powers of Court in executing transferred decree

 

Code of Civil Procedure Section

 

42. Powers of Court in executing transferred decree. — ¹[(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.]

Note 1: Section 42 renumbered as sub-section (1) of that section by Act 104 of 1976, s. 19, (w.e.f. 1-2-1977).

Note 2: Ins. by s. 19, ibid., (w.e.f. 1-2-1977).

 

Code of Civil Procedure Section

Result of execution proceedings to be certified

 

Code of Civil Procedure Section

 

41. 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.

 

Code of Civil Procedure Section

Transfer of decree to Court in another State

 

Code of Civil Procedure Section

 

40. 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.

 

Code of Civil Procedure Section

Section 39: Transfer of decree

 Code of Civil Procedure Section 38. Court by which decree may be executed.

39. 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 ¹[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.

²[(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.]

³[(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.]

Note 1: Ins. by s. 18, ibid., (w.e.f. 1-2-1977).

Note 2: Ins. by Act 104 of 1976, s. 18, (w.e.f. 1-2-1977).

Note 3: Ins. by Act 22 of 2002, s. 2 (w.e.f. 1-7-2002).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 40. Transfer of decree to Court in another State.

Simplified Explanation:

Section 39 deals with transfer of decree for execution to the Court where the property is situate. The power of the executing Court has been taken away against a person or property outside the local limits of its territorial jurisdiction by the amendment. Earlier, he could execute the decree throughout the territory of the province.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Court by which decree may be executed

 

Code of Civil Procedure Section

COURTS BY WHICH DECREES MAY BE EXECUTED

38. Court by which decree may be executed.—A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Code of Civil Procedure Section

Definition of Court which passed a decree

 

Code of Civil Procedure Section

 

37. Definition of Court which passed a decree.—The expression “Court which passed a decree,” or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,—

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

³[Explanation.—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]

Note 1: Ins. by s. 17, ibid., (w.e.f. 1-2-1977).

 

Code of Civil Procedure Section

Application to orders

 

Code of Civil Procedure Section

 

PART II

EXECUTION

GENERAL

¹[36. Application to orders.—The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).]

Note 1: Subs. by s. 16, ibid., for s. 36 (w.e.f. 1-2-1977).

Code of Civil Procedure Section