Section 23 CPC: To What Court an Application for Transfer Lies
Section 23 of the Code of Civil Procedure, 1908 identifies the court before which a defendant must file a transfer application under Section 22 when a civil suit could legally have been instituted in more than one court.
Section 23 CPC: statutory text
Section 23 - To what Court application lies.
(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.
(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.
(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.
The provision should be read with the applicable CPC text and any valid local amendments or special procedural provisions. See the official India Code repository for legislation.
Meaning and purpose of Section 23
Section 23 does not itself create an independent right to transfer every civil suit. It identifies the competent court for an application made under Section 22. Section 22 applies where the suit could have been filed in any one of two or more courts and a defendant seeks transfer to another court that also has jurisdiction.
The term appellate court refers to the court to which appeals from the relevant subordinate court ordinarily lie under the applicable legal framework. Subordinate courts are courts situated below another court in the judicial hierarchy for the relevant purpose. High Court means the High Court exercising jurisdiction over the courts concerned.
Which court hears the transfer application?
| Situation | Forum under Section 23 | Provision |
|---|---|---|
| All eligible courts are subordinate to the same appellate court. | That common appellate court. | Section 23(1) |
| Eligible courts are subordinate to different appellate courts, but to the same High Court. | The common High Court. | Section 23(2) |
| Eligible courts are subordinate to different High Courts. | The High Court within whose territorial limits the court where the suit was instituted is situated. | Section 23(3) |
Conditions for applying Sections 22 and 23
- More than one competent court: The suit must be one that may lawfully be instituted in two or more courts.
- Application by a defendant: Section 22 expressly permits any defendant to seek the transfer.
- Notice: The defendant must give notice to the other parties.
- Timely request: The application must be made at the earliest possible opportunity and, where issues are settled, at or before that settlement.
- Consideration of objections: The court deciding the request considers objections, if any, and determines the court in which the suit should proceed.
Practical examples
Example 1: Same appellate court
Two civil courts competent to hear a suit are subordinate to the same District Court acting as their appellate court. An application under Section 22 would be made to that common appellate court under Section 23(1), assuming the actual appellate hierarchy is as stated.
Example 2: Different appellate courts, one High Court
Two competent trial courts are subordinate to different district-level appellate courts, but both are within the jurisdiction of one High Court. Section 23(2) directs the application to that High Court.
Example 3: Different High Courts
A suit is filed in a competent court in State A, while another competent court is subordinate to the High Court of State B. Under the wording of Section 23(3), the application lies to the High Court within whose local limits the court where the suit was brought is situated. Inter-State transfer questions may also engage Section 25 CPC; the appropriate statutory route depends on the relief sought and the applicable law.
How to prepare an application
A defendant considering Section 22 should identify the courts in which the suit could lawfully have been instituted, verify their appellate hierarchy, and file promptly before the appropriate forum identified by Section 23. The application should explain why transfer is sought, disclose the pending suit and relevant jurisdictional facts, and comply with the relevant court's procedural and filing rules. The opposing parties must receive notice.
Transfer is not automatic merely because another court is also competent. The deciding court considers the objections of the other parties and determines where the suit should proceed.
Relationship with other CPC provisions
- Section 22: Transfer request by a defendant where the suit could have been filed in more than one court.
- Section 24: General powers of transfer and withdrawal exercised by the High Court or District Court, subject to statutory conditions.
- Section 25: Supreme Court's power to transfer suits, appeals and other proceedings between courts in different States, subject to the provision.
- Section 21: Restrictions on raising specified jurisdictional objections at appellate or revisional stages.
- Section 21A: Bar on a separate suit challenging a decree solely on an objection as to the place of suing.
Frequently asked questions
Can a plaintiff apply for transfer under Section 22 CPC?
Section 22 specifically refers to an application by a defendant. Other statutory transfer powers, including Sections 24 and 25, may be relevant depending on the circumstances.
Does Section 23 decide whether the suit can be transferred?
Section 23 determines the appropriate forum for an application under Section 22. The conditions for such an application and consideration of objections arise under Section 22.
When must a Section 22 application be filed?
At the earliest possible opportunity and, where issues are settled, at or before the settlement of issues.
Does Section 23 cover every transfer of a civil case?
No. It addresses applications under Section 22. Sections 24 and 25 contain other transfer powers with different requirements.
Official legal resources
- India Code - central legislation and statutory texts
- Legislative Department, Government of India
- Supreme Court of India
Editorial note: This is general legal information. Court hierarchy, local amendments, filing rules and judicial interpretation should be checked for the particular dispute.