Transfer of a Decree for Execution
Chapter Thirty
Syllabus topic 3.1, "Meaning of execution"
Pages 168 to 172 of 365
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.
Transfer of a Decree for Execution
That certificate is the safeguard against double recovery. The receiving court is told exactly how much is left.
Order XXI Rule 8: where a decree sent for execution has been executed, or where execution has been stayed, the Court executing it shall certify the fact to the Court which passed the decree.
Section 41 puts the same duty in the sections: the Court to which a decree is sent shall certify to the Court which passed it the fact of execution, or, where it fails to execute, the circumstances attending the failure.
Section 42(1): the Court executing a decree sent to it shall have the same powers in executing it as if it had been passed by itself, and all persons disobeying or obstructing shall be punishable by it in the same way. Its order in executing the decree is subject to the same rules in respect of appeal as if it had passed the decree itself.
Section 42(2) spells out four powers the transferee court has, including the power to send the decree for execution to another Court under section 39, to execute it against the legal representative of the deceased judgment-debtor under section 50, to order attachment of a decree, and to enforce any order as to costs.
Section 42(3) is the corresponding limit: the transferee court shall not have the power to order execution at the instance of a transferee of the decree, nor certain powers reserved to the court which passed it.
Section 43 deals with decrees passed by Civil Courts in places to which the Code does not extend, and section 44 with decrees of Revenue Courts in such places.
Section 44A is the foreign decree provision: a certified copy of a decree of a superior court of a reciprocating territory may be filed in a District Court and executed as if it had been passed by that District Court, and the executing court must refuse execution if the decree falls within any of the exceptions in section 13(a) to (f). Its substance and its limits, including the exclusion of taxes, fines and arbitration awards, are dealt with in [Foreign Judgments].
Section 45 allows a decree to be sent for execution to a Court outside India established by the Central Government, where the State Government has by notification declared that section applicable.
Transfer of a Decree for Execution
Section 46, precepts. This is the one students overlook and examiners like. The Court which passed a decree may, on the application of the decree-holder, issue a precept to any other Court which would be competent to execute it, requiring that Court to attach any property belonging to the judgment-debtor and specified in the precept. The proviso limits it: no attachment under a precept shall continue for more than two months, unless the period is extended by an order of the Court which passed the decree, or unless before its determination the attachment has been withdrawn.
A precept is therefore a holding device. It freezes property in another district while the decree-holder gets the decree itself transferred, and it lasts two months.
Section 39 against section 46
| Transfer, section 39 | Precept, section 46 | |
|---|---|---|
| What is sent | The decree, for execution | A direction to attach, not the decree |
| What the other court does | Executes the decree fully | Attaches the specified property only |
| Duration | Until execution is complete | Two months, unless extended |
| Purpose | To realise the decree elsewhere | To prevent the property being disposed of meanwhile |
A worked example
Aisha obtains a money decree in Thane against Bharat, who lives in Thane but owns a warehouse in Solapur and a bank account in Pune.
Can the Thane court attach the Solapur warehouse itself? No. Section 39(4): nothing authorises the court which passed the decree to execute it against property outside its own local limits.
What does she do? She applies under section 39(1)(b), because Bharat has no property within Thane sufficient to satisfy the decree and has property in Solapur. The Thane court may send the decree to the Solapur court, which must be of competent jurisdiction, judged under section 39(3) by whether it could try that suit today.
What travels with the decree? Under Order XXI Rule 6, a copy of the decree, a certificate of non-satisfaction or of the extent of part satisfaction, and a copy of any execution order or a certificate that none was made.
What can the Solapur court do? Under section 42(1), everything the Thane court could have done, as if it had passed the decree itself, and its orders are appealable on the same footing.
Bharat is about to sell the Pune bank balance while the transfer is being arranged. Aisha applies under section 46 for a precept to the Pune court to attach it. That attachment lasts two months unless extended by the Thane court.
The Solapur court executes in part. Under section 41 and Order XXI Rule 8 it must certify the fact of execution back to Thane, so the record of what remains outstanding stays accurate.
Transfer of a Decree for Execution
Change the facts. Suppose the decree is a money decree of a superior court in Singapore. Aisha does not need section 39 at all: section 44A lets her file a certified copy in a District Court here, and it is executed as if that court had passed it, subject to the section 13 exceptions.
What it does not mean
Transfer is not the court's to order at large. Under section 39(1) it is on the application of the decree-holder; only under sub-section (2), and only to a subordinate court, may it act of its own motion.
A court cannot execute outside its own limits. Section 39(4).
Competence is not judged as at the date of the suit. Section 39(3) fixes it at the time of the transfer application.
A precept is not a transfer. It attaches specified property, for two months, and no more.
The transferee court is not a lesser court. Section 42(1) gives it the same powers as if it had passed the decree, subject to the exceptions in sub-section (3).
Two short sections that complete the Part: sections 40 and 49
Section 40, transfer to 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. So the receiving State's own rules govern, not ours.
Section 49, transferee: every transferee of a decree holds it subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder. A decree can be assigned, but it is assigned with its defences attached; the transferee is in no better position than the person he bought from.
Quick revision## Quick revision
Section 38: executed by the court which passed it, or the court to which it is sent.
Section 39(1), on the decree-holder's application, four grounds: (a) the judgment-debtor resides, carries on business or works for gain there; (b) he has insufficient property here and property there; (c) the decree directs sale or delivery of immovable property situate there; (d) any other reason recorded in writing. 39(2): of its own motion, to a subordinate court. 39(3): competence judged at the time of the transfer application. 39(4): no execution against person or property outside the court's own limits.
Order XXI Rule 6: send a copy of the decree, a certificate of non-satisfaction or part satisfaction, and a copy of any execution order. Rule 8 and section 41: the transferee court certifies back execution, stay, or the circumstances of failure.
Transfer of a Decree for Execution
Section 42: the transferee court has the same powers as if it had passed the decree, with the exceptions in sub-section (3).
Section 44A: a money decree of a superior court of a reciprocating territory, filed in a District Court, executed as its own, subject to section 13.
Section 46, precept: a direction to another competent court to attach specified property, lasting two months unless extended.
Test yourself
1. On what grounds may a decree be sent to another court for execution? Where the judgment-debtor actually and voluntarily resides, carries on business or personally works for gain within the limits of that court; where he has no property within the limits of the court which passed the decree sufficient to satisfy it but has property within the limits of that other court; where the decree directs the sale or delivery of immovable property situate outside the limits of the court which passed it; or for any other reason which the court which passed the decree records in writing.
2. May the court which passed the decree transfer it without an application? Only to a subordinate court. Section 39(2) allows it to send the decree of its own motion to any subordinate court of competent jurisdiction; a transfer under sub-section (1) is on the application of the decree-holder.
3. When is a court "of competent jurisdiction" for this purpose? Under section 39(3), if at the time of making the application for the transfer it would have jurisdiction to try the suit in which the decree was passed.
4. What must accompany a decree sent for execution? Under Order XXI Rule 6, a copy of the decree, a certificate stating that satisfaction has not been obtained by execution within the jurisdiction of the court which passed it, or the extent to which satisfaction has been obtained and what remains unsatisfied, and a copy of any order for execution or a certificate that none has been made.
5. What powers has the court to which a decree is sent? Under section 42(1) the same powers in executing the decree as if it had been passed by itself, with its orders subject to the same rules as to appeal, subject to the exceptions in section 42(3), which include the power to order execution at the instance of a transferee of the decree.
6. What is a precept, and how long does it last? Under section 46, a precept is an order issued by the court which passed the decree, on the decree-holder's application, to another court competent to execute it, requiring that court to attach property of the judgment-debtor specified in the precept. Such an attachment shall not continue for more than two months unless the period is extended by the court which passed the decree, or unless it is withdrawn before then.
The rest of this subject
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