PART II – EXECUTION (CPC, 1908) Section 36-46

 

PART II – EXECUTION (CPC, 1908)

Section 36 – Application of Provisions Relating to Execution of Decrees to Orders

Scope and Purpose

Section 36 provides that the provisions of the Code relating to the execution of decrees shall, so far as they are applicable, also apply to the execution of orders. This includes provisions relating to payment under a decree or order. The object of this section is to remove procedural ambiguity and ensure that orders, where executable in nature, are enforced through the same machinery as decrees.

Legal Significance

An executable order does not require a separate procedural framework. However, only those provisions which are reasonably applicable can be extended to orders. Interlocutory or non-executable orders do not fall within its ambit.

Section 37 – Definition of “Court Which Passed a Decree”

Meaning of the Expression

Section 37 defines the expression “Court which passed a decree” for the purposes of execution. The definition is inclusive and applies unless the context indicates otherwise.

Clause (a): Decree Passed in Appellate Jurisdiction

Where a decree has been passed by an appellate court, the “Court which passed the decree” shall be deemed to be the Court of first instance. This enables execution proceedings to be initiated at the trial court level, which is more accessible and administratively suited for execution.

Clause (b): Where the Court of First Instance Ceases to Exist or Has No Jurisdiction

If the Court of first instance has ceased to exist or no longer has jurisdiction to execute the decree, then the court which would have jurisdiction to try the suit at the time of filing the execution application shall be deemed to be the court which passed the decree.

Explanation to Section 37

The Explanation clarifies that a court does not lose jurisdiction to execute a decree merely because territorial jurisdiction has changed after the institution of the suit or passing of the decree. In such cases, both the original court and the newly competent court have concurrent jurisdiction to execute the decree.

Courts by Which Decrees May Be Executed

Section 38 – Court by Which a Decree May Be Executed

General Rule

A decree may be executed either by:

• The court which passed the decree, or

• The court to which the decree is sent for execution.

This section establishes the foundational principle of execution jurisdiction.

Section 39 – Transfer of Decree for Execution

Sub-section (1): Transfer on Application of Decree-Holder

The court which passed the decree may, on the application of the decree-holder, transfer the decree for execution to another court of competent jurisdiction in the following situations:

Clause (a): Residence or Business of Judgment-Debtor

Where the judgment-debtor actually and voluntarily resides, carries on business, or personally works for gain within the jurisdiction of another court.

Clause (b): Property of Judgment-Debtor

Where the judgment-debtor has no sufficient property within the jurisdiction of the court which passed the decree, but has property within the jurisdiction of another court.

Clause (c): Immovable Property Outside Jurisdiction

Where the decree directs the sale or delivery of immovable property situated outside the jurisdiction of the court which passed the decree.

Clause (d): Any Other Sufficient Reason

Where the court considers, for any other recorded reason, that the decree should be executed by another court.

Sub-section (2): Transfer by Court on Its Own Motion

The court which passed the decree may suo motu send it for execution to any subordinate court of competent jurisdiction.

Sub-section (3): Meaning of Court of Competent Jurisdiction

A court shall be deemed to be of competent jurisdiction if, at the time of application for transfer, it would have jurisdiction to try the original suit.

Sub-section (4): Territorial Limitation

Nothing in this section authorises the court which passed the decree to execute it against persons or property outside its territorial jurisdiction.

Section 40 – Transfer of Decree to Court in Another State

Execution in Another State

Where a decree is transferred for execution to another State, it shall be executed by the transferee court in accordance with the procedural rules in force in that State.

Section 41 – Certification of Result of Execution

Duty of Transferee Court

The court to which a decree is sent for execution must certify to the court which passed the decree:

• The fact of execution, or

• The circumstances leading to failure of execution.

This ensures procedural accountability and judicial record-keeping.

Section 42 – Powers of Court Executing Transferred Decree

Sub-section (1): General Powers

The executing court has the same powers as if it had itself passed the decree. Disobedience or obstruction to execution is punishable by the executing court, and its orders are subject to appeal in the same manner.

Sub-section (2): Specific Powers Included

The executing court may:

• Transfer the decree further under Section 39,

• Execute the decree against legal representatives under Section 50,

• Order attachment of a decree.

Sub-section (3): Communication with Original Court

Orders passed under sub-section (2) must be communicated to the court which passed the decree.

Sub-section (4): Powers Excluded

The executing court cannot:

• Execute the decree at the instance of a transferee of the decree,

• Grant leave to execute a decree against persons not covered under Order XXI Rule 50 in the case of a firm.

Section 43 – Execution of Decrees Passed by Civil Courts Where CPC Does Not Extend

Execution Within CPC Territory

Decrees passed by civil courts in areas where the CPC does not extend, or by courts established by the Central Government outside India, may be executed within CPC territories if execution is not possible within their own jurisdiction.

Section 44 – Execution of Decrees Passed by Revenue Courts

Power of State Government

The State Government may, by notification, declare that decrees of Revenue Courts in non-CPC areas may be executed as if they were decrees of civil courts within the State.

Section 44A – Execution of Decrees from Reciprocating Territories

Sub-section (1): Filing of Foreign Decree

A certified copy of a decree passed by a superior court of a reciprocating territory may be filed in a District Court in India and executed as if it were passed by that court.

Sub-section (2): Certificate of Satisfaction

A certificate from the foreign court stating the extent of satisfaction or adjustment of the decree is conclusive proof for execution purposes.

Sub-section (3): Application of Section 47 and Exceptions

Section 47 applies to execution proceedings. The District Court must refuse execution if the decree falls within the exceptions mentioned in Section 13 clauses (a) to (f).

Explanation on Reciprocating Territory and Decree

A reciprocating territory is one notified by the Central Government. A decree includes only money decrees and excludes taxes, penalties, fines, and arbitration awards.

Section 45 – Execution of Decrees Outside India

Transmission of Decree

Courts in India may send decrees for execution to courts established outside India by the authority of the Central Government, where the State Government has notified the applicability of this section.

Section 46 – Precepts

Sub-section (1): Issuance of Precept

The court which passed the decree may issue a precept to another competent court directing attachment of specific property of the judgment-debtor.

Sub-section (2): Duration of Attachment

Attachment under a precept cannot continue for more than two months unless:

• The period is extended by the issuing court, or

• The decree is transferred and sale proceedings are initiated.

Purpose of Precept

A precept acts as a temporary protective measure to prevent disposal of property before formal execution proceedings begin.