Transfer of a Decree for Execution

In one line

A decree is passed where the suit was tried, and the judgment-debtor's property or person is often somewhere else, so sections 39 to 46 let the decree travel.

Why the Code allows it

Section 38 gives only two possibilities: the court that passed the decree, or the court to which it is sent. If a decree could never be sent, a decree-holder would be helpless the moment the judgment-debtor moved district, and a defendant could defeat any decree by keeping his property elsewhere.

But transfer is not automatic either, because sending a decree to another court takes it away from the court that knows the case. So section 39 lists the grounds, and the Code adds safeguards at both ends: certified copies, certificates of what remains unsatisfied, and a bar on transferring beyond the Code's reach.

When a decree may be sent: section 39

Section 39(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 was passed actually and voluntarily resides, or carries on business, or personally works for gain, within the local limits of that other Court; or (b) if that person has not property within the local limits of the Court which passed the decree sufficient to satisfy it, and has property within the limits of that other Court; or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits 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 that other Court.

Section 39(2): the Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

Section 39(3) defines competence for this purpose: a Court is deemed to be of competent jurisdiction if, at the time of making the application for transfer, it would have jurisdiction to try the suit in which the decree was passed.

Section 39(4) is the limit that matters most: nothing in the section authorises the Court which passed the decree to execute it against a person or property outside the local limits of its own jurisdiction.

So the grounds are four, the court may also act on its own motion but only downwards to a subordinate court, and competence is judged as at the date of the transfer application.

The mechanics: sections 41 to 46 and Order XXI Rules 4 to 9

Order XXI Rule 6: where a decree is sent to another Court, the Court which passed it shall send a copy of the decree, a certificate stating that satisfaction of the decree has not been obtained by execution within its own jurisdiction, or, where it has been executed in part, the extent to which satisfaction has been obtained and what part remains unsatisfied, and a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect.