Code of Civil Procedure, 1908 (CPC)
Transfer of a Decree for Execution: Sections 39 to 45 CPC
A decree is passed where the suit was tried, but the judgment-debtor and his property may be anywhere. Section 39(4) of the Code of Civil Procedure, 1908 forbids the court that passed the decree from executing it against persons or property outside its own limits, so the Code provides a route: the decree is transferred to a court that can reach them. These notes cover the grounds and procedure of transfer under Section 39, the powers of the transferee court under Section 42, execution across States, the execution of foreign decrees under Section 44A, and the sending of a decree outside India under Section 45.
Transfer, the transferee court's powers, precept, and decrees crossing borders
1. Section 39: Grounds and Procedure of Transfer
§ Section 39, CPC 1908 (in substance) (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 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 no 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. (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 authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. |
Four points on the section
i. The grounds are four. Residence or business of the judgment-debtor; insufficient property locally but property elsewhere; a decree for the sale or delivery of immovable property situate outside; and any other reason recorded in writing, which is the residuary ground and must be reasoned.
ii. On application or suo motu. Transfer is ordinarily on the decree-holder's application under sub-section (1), but under sub-section (2) the court may of its own motion send a decree to a subordinate court of competent jurisdiction.
iii. Competent jurisdiction is defined. By sub-section (3), a court is competent if, at the time of the transfer application, it would have jurisdiction to try the suit, which links the transferee's competence to the ordinary rules of pecuniary and territorial jurisdiction.
iv. The territorial bar. Sub-section (4), added in 1976, puts the matter beyond doubt: the court that passed the decree cannot itself reach persons or property outside its limits. It must transfer, or issue a precept under Section 46.
Section 40 completes the picture for inter-State execution: where a decree is sent for execution to a court in another State, it is sent to such court and executed in the manner prescribed by the rules in force in that State. Section 41 requires the transferee court to certify back to the court which passed the decree the fact of execution, or, where it has failed, the circumstances attending the failure.
2. Section 42: Powers of the Transferee Court
§ Section 42, CPC 1908 (in substance) (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 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 been passed by itself. (2) Without prejudice to the generality 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: (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 Courts 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 those specified in Order XXI Rule 50. |
§ The general rule and the exceptions The rule. The transferee court executes as if it had passed the decree itself: it has the same powers, may punish disobedience and obstruction, and its orders carry the same rights of appeal. The exceptions. Sub-section (4) withholds two powers: it cannot order execution at the instance of a transferee of the decree, and, in the case of a decree against a firm, it cannot grant leave to execute against a person outside those specified in Order XXI Rule 50. These remain with the court that passed the decree. The reporting duty. Where the transferee court exercises one of the specific powers in sub-section (2), sending the decree onward, executing against a legal representative or attaching a decree, it must send a copy of the order to the court that passed the decree, so that the originating court's record remains complete. |
3. Execution of Decrees from Other States and Other Courts
i. Section 40: another State. A decree sent for execution to a court in another State is executed in the manner prescribed by the rules in force in that State, so the procedural law of the executing State governs the steps taken there.
ii. Section 43: decrees from places to which the Code does not extend. A decree passed by a civil court in a place to which the Code does not extend, or by a court established or continued by the authority of the Central Government outside India, or by a revenue court in a place to which the Code does not extend, may, if it cannot be executed within the jurisdiction of the court by which it was passed, be executed in the manner provided in the Code.
iii. Section 44: revenue courts. The State Government may, by notification, declare that the decrees of any revenue court in a State to which the Code does not extend may be executed in the State as if they had been passed by courts in that State.
4. Section 44A: Execution of a Foreign Decree
§ Section 44A, CPC 1908 (in substance) (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted, and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13. Explanation I. Reciprocating territory means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory; and superior Courts, with reference to any such territory, means such Courts as may be specified in the said notification. Explanation II. Decree with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment. |
Four conditions must therefore be satisfied before Section 44A operates: the decree must be of a superior court specified in the notification; that court must be in a notified reciprocating territory; the decree must be a money decree, excluding taxes, fines and penalties, and excluding arbitration awards; and the decree must not fall within any of the six exceptions in Section 13, which the District Court must consider. Where any of these fails, there is no direct execution and the decree-holder must bring a fresh suit in India on the foreign judgment, within three years under Article 101 of the Limitation Act, 1963.
5. Section 45: Execution Outside India
§ Section 45, CPC 1908 So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send such decree for execution to any Court established or continued by the authority of the Central Government outside India, to which the State Government has by notification in the Official Gazette declared this section to apply. |
Section 45 is the mirror image of Section 44A. Where Section 44A brings a foreign decree into India for execution, Section 45 allows an Indian court to send its decree out of India, but only to a court established or continued by the authority of the Central Government outside India, and only where the State Government has notified the section as applicable to that court. The limitation is deliberate: an Indian court cannot send its decree to a genuinely foreign court, whose enforcement depends on that country's own law, and the section is confined to courts that are, in a sense, Indian courts sitting abroad.
6. The Provisions Compared
Provision | What it does | Key condition |
|---|---|---|
Section 39 | Transfers a decree to another court in India for execution | One of the four grounds, and the transferee court must be competent to try the suit today |
Section 40 | Governs execution where the decree is sent to a court in another State | Executed in the manner prescribed by the rules in force in that State |
Section 42 | Fixes the powers of the transferee court | Same powers as if it had passed the decree, except the powers withheld by sub-section (4) |
Section 43 | Allows execution of decrees of courts in places to which the Code does not extend | The decree cannot be executed within the jurisdiction of the court that passed it |
Section 44A | Allows direct execution in India of a foreign money decree | A superior court of a notified reciprocating territory, a money decree, and not within the Section 13 exceptions |
Section 45 | Allows an Indian court to send its decree for execution outside India | Only to a court established or continued by the Central Government abroad, and notified by the State Government |
Section 46 | Precept: asks another court to attach property pending transfer | Attachment continues for two months unless extended or continued in execution |
7. Landmark Points
- Section 39(1) and (3). The four grounds of transfer, and the definition of a competent court as one that would today have jurisdiction to try the suit.
- Section 39(4). The court that passed the decree cannot execute it against persons or property outside its local limits.
- Section 42(1) and (4). The transferee court has the same powers as if it had passed the decree, except that it cannot order execution at the instance of a transferee of the decree, or grant leave under Order XXI Rule 50 against a person outside those specified.
- Section 44A with Section 13. A money decree of a superior court of a notified reciprocating territory is executable as a District Court decree, but execution must be refused where the decree falls within any of the six exceptions in Section 13.
- Section 45. An Indian court may send its decree abroad only to a court established or continued by the authority of the Central Government and notified by the State Government.
8. Frequently Asked Questions
On what grounds can a decree be transferred for execution?
Under Section 39(1): where the judgment-debtor resides, carries on business or personally works for gain within the other court's limits; where he has insufficient property locally but property there; where the decree directs the sale or delivery of immovable property situate outside; or for any other reason the court records in writing.
Can a court transfer a decree of its own motion?
Yes, but only to a subordinate court. Section 39(2) allows the court which passed the decree to send it of its own motion for execution to any subordinate court of competent jurisdiction; transfer to other courts requires the decree-holder's application.
What powers does the transferee court have?
Under Section 42(1) the same powers as if it had passed the decree, including the power to punish disobedience and obstruction, with the same rules as to appeal. Sub-section (2) confirms specific powers, including onward transfer under Section 39, execution against a legal representative under Section 50, and attachment of a decree.
What powers does the transferee court not have?
Under Section 42(4), it cannot order execution at the instance of a transferee of the decree, and in the case of a decree passed against a firm it cannot grant leave to execute against any person other than those specified in Order XXI Rule 50. Those powers remain with the court which passed the decree.
How is a foreign decree executed in India?
Under Section 44A, where the decree is a money decree of a superior court of a notified reciprocating territory, a certified copy with the prescribed certificate of satisfaction is filed in a District Court and executed as if passed by it, subject to the District Court refusing execution if the decree falls within any of the exceptions in Section 13.
What decrees are excluded from Section 44A?
Sums payable in respect of taxes or other charges of a like nature, or in respect of a fine or other penalty, and arbitration awards even where enforceable as a decree. Decrees of courts that are not superior courts of a notified reciprocating territory are also outside the section, and require a fresh suit.
Can an Indian court send a decree for execution outside India?
Only under Section 45, and only to a court established or continued by the authority of the Central Government outside India, to which the State Government has by notification declared the section to apply. It cannot send a decree to a genuinely foreign court.
9. Related Topics in This CPC Series
- Precept under Section 46
- Execution: Meaning, Scope and Sections 37 and 38
- Foreign Judgments: Sections 13, 14 and 44A
- Questions Determined by the Executing Court under Section 47