Execution Of Decree Section 38-42 Of The CPC,1908

38 to 42 of the Code of Civil Procedure: Pertain to the execution of decrees 

This blog is written by Khan Aqeel.

Introduction

The Code of Civil Procedure, 1908, clearly addresses the courts that have the authority to execute decrees and the transfer of decisions for execution in sections 38 to 42. These clauses set up the foundation for guaranteeing that a court's decree is successfully carried out, either by the court that issued it or by another court with the necessary authority.

Section 38: Court by which decree may be executed 

This section provides for the courts that can execute a decree. It states: 

 

• 1. A decree may be executed either by: 

 

   (a) The court that issued the ruling, or  

   (b) The court to whom it is sent in accordance with this Code's rules for execution.  

Section 39: Transfer of decree

This section lays down the circumstances under which a decree can be transferred for execution.  

• 1. Grounds for Transfer: The court that passed the decree may transfer it to another court if:  

   (a)The judgement debtor lives within the boundaries of the other court's jurisdiction, conducts business there, or works for pay.  

   (b) The other court's jurisdiction includes the judgement debtor's property, which is the subject of the decree to be enforced against.  

   (c) Property located beyond the court's jurisdiction is subject to the decree's instructions for its sale or delivery.

   (d) The court takes into account any further compelling justification for transferring the decree.  

• 2. Proviso to Subsection (1): A decree cannot be transferred to a court of lesser pecuniary jurisdiction than the court that passed the decree.  

• 3. Mode of Transfer: When a decree is transferred, it is sent to the transferee court along with:  

   - A copy of the decree.  

   - A certificate from the original court.  

Section 40: Transfer of decree to a foreign court

This section provides for the execution of decrees outside India.  

• 1. A court created under a foreign government's authority may be tasked with carrying out a decree.
  
  

• 2.This is only acceptable if India and the foreign nation have a reciprocal agreement that allows decrees to be enforced in each other's courts.  

Section 41: Result of execution proceedings in a foreign court.

 

This section deals with the outcome of execution proceedings in a foreign court. 

 

• 1. After a decree is sent for execution to a foreign court:  

   (a) The foreign court will execute the decree as per its own laws.  

   (b) Once the decree is executed, the foreign court will send a certificate of execution to the Indian court.  

• 2. Upon receiving the certificate, the Indian court will consider the decree as fully executed.  

Section 42: Powers of the court in executing transferred decrees

  

This section outlines the powers of the court to which a decree has been transferred for execution.  

• 1. Execution Authority: The court that receives a decree has the same authority as the court that issued it.    

• 2. Procedure to be Followed:  

   (a) The transferee court must follow the execution procedure prescribed in the CPC. 

 

   (b) It can address any queries that come up during execution, including those pertaining to attachment or sale or objections made by the judgement debtor.

• 3. Scope: The transferee court acts as though it were the original court for all purposes related to the execution of the decree. 

Case law:

Case: Kiran Singh v. Chaman Paswan (1954 AIR 340)

Facts of the Case:

• The case was a disagreement over a ruling made by a Bihar subordinate court. The edict has to do with land ownership..
• During the execution processes, Kiran Singh, the judgement debtor, contested the decree, claiming that the court that issued it lacked the territorial jurisdiction to consider the case.
• Despite this objection, the decree-holder (Chaman Paswan) proceeded to execute the decree.

Issue:

The primary issue before the Court was:

• Whether a decree passed by a court lacking jurisdiction (territorial or otherwise) can be executed, or whether it is rendered null and void.

Judgment:

The Supreme Court delivered a landmark ruling, addressing the issue of jurisdiction and its impact on decrees.

• Lack of Jurisdiction Renders a Decree Void:

1. The Court ruled that a court's decree is void and cannot be executed in execution proceedings if it lacks inherent jurisdiction (territorial, pecuniary, or subject matter).
2. Additionally, territorial jurisdiction is crucial, and even with permission or waiver, parties cannot uphold a decision that is fundamentally invalid.
   
   

• Executing Court's Role:

1. The Court explained that although an executing court is typically not allowed to support a decree, it must determine if the decree is legitimate and issued by a court with the appropriate authority.
2. The executing court has the power to deny execution if it is determined that the decree lacks jurisdiction.

• Principle of Jurisdiction:

1. The Court reiterated that jurisdiction is the foundation of a court's authority to act. Without jurisdiction, any order or decree issued by the court lacks legal force.

• Outcome:

1. The Supreme Court declared the decree in this case a nullity, as it had been passed without proper territorial jurisdiction.