EXECUTION OF DEGREE BY ANOTHER COURT IN INDIA.
A. A. JOSE
(Querist) 23 January 2009
This query is : Resolved
Dear Sirs,
A decree-holder desires to transfer the decree to another court of compentent jurisdiction situated in another District in the same State for getting the same executed againist the property of the judgement-debtor which is a State Government Company under S.617 of the Companies. The procedures involved for the same may kindly be indicated. Whether the court at the other place has to authenticate/endorse the decree before the same is entrusted to the court's Bailiff or not.Thanks in advance.
PALNITKAR V.V.
(Expert) 23 January 2009
Please see the following provision. Also find out the rules, if any, made by your High Court in that behalf.Normally, you have furnish copy of the decree for being forwarded to the other court. The court will execute the decree as if it has passed the decree. It has all the powers enumerated in Sec. 47 of the CPC.
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.
State Amendment
In Uttar Pradesh w.e.f. 1st August, 1978.-In its application to the State of Uttar Pradesh, for sub-section (3), substitute the following:-
"(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits, if any, of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit."
[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.
FOOTNOTES:
1. Inserted by Act No. 104 of 1976, with effect from . 1st February, 1977.
2. Inserted by Act No. 104 of 1976, with effect from . 1st February, 1977.
3. Inserted by the CPC Amendment Act, 2002, dtd. 24th. May, 2002.
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.
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 disobeying or obstructing the executing 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 been 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
Sushil Kumar Bhatia
(Expert) 25 January 2009
An execution application can only be moved in same court of jurisdiction where decree has been passed and enforement of execution order can be acted where judgement holder has shown the attacheable property in another district/state
A. A. JOSE
(Querist) 27 January 2009
Thank you Palnikar Sir for the reproduction of cpc provisions. Kindly comment further on the view expressed by Bhatia sir herein above.
Bhatia Sir, thanks for your view. However, would you be kind enough to furnish any case law citation for the vew that the JD has to show the attachable property in another district/state.
A. A. JOSE
(Querist) 10 February 2009
Issue still not properly answered please. Will be obliged if any citations as stated above are given.
PALNITKAR V.V.
(Expert) 11 February 2009
Do you need citation when Sec.39[1][b] of CPC is so clear?
A. A. JOSE
(Querist) 12 February 2009
Thanx a lot Palnikar Sir. But the last portion of my question needs further clarification and I will be thankful if you could specifically answer the same please.
