Under what circumstances can the decree-holder apply to have the decree transferred to another Court for execution? Or By what Courts decree is to be executed and when can the decree be transferred to another Court?

Question: Under what circumstances can the decree-holder apply to have the decree transferred to another Court for execution? Or By what Courts decree is to be executed and when can the decree be transferred to another Court?

Find the answer to the mains question only on Legal Bites. [Under what circumstances can the decree-holder apply to have the decree transferred to another Court for execution? Or By what Courts decree is to be executed and when can the decree be transferred to another Court?]

Answer

A decree may be executed either by the court which passed it or by the court to which it is sent for execution. There is no particular manner prescribed for sending a decree by the court passing the decree to the executing court. Section 39 of the Code of Civil Procedure, 1908 provides the circumstances under which the decree-holder can apply to have the decree transferred to another court. It states –

(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 –

1. 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
2. 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
3. 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
4. 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 the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(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.

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

In Mohan Lal v. Benay Kishai [AIR 1953 SC 65], it was held that under Section 39 (2), the court can even ‘suo moto’ send the decree for execution to another court.

In dealing with the application for execution for transfer of a decree to another court for execution, two aspects must be kept in view, first that a decree-holder has a legal not merely an equitable right for transfer, and secondly, the section is not mandatory.

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