Code of Civil Procedure, 1908

Section 39 CPC: Transfer of Decree for Execution

Section 39 of the Code of Civil Procedure, 1908 (CPC) governs when a court that passed a civil decree may send it to another court for execution. It specifies the grounds for transfer, the test of competent jurisdiction, and the territorial limits on the original court's execution powers.

Section 39 CPC - Statutory provision

39. Transfer of decree.

(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 not 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.

Meaning and purpose of Section 39

A decree is a formal adjudication conclusively determining the rights of parties concerning matters in controversy in a suit, as defined in Section 2(2) CPC. A decree-holder is the person in whose favour a decree has been passed or an order capable of execution has been made (Section 2(3)). A judgment-debtor is the person against whom a decree has been passed or an executable order made (Section 2(10)).

Execution is the legal process of enforcing the relief granted by a decree. Section 39 enables execution through a court better placed to act against the judgment-debtor or relevant property. The expression court which passed a decree is explained in Section 37 CPC; Section 38 CPC permits execution by the court which passed the decree or the court to which it is sent.

When can a decree be transferred?

Section 39(1)(a): Residence or business

Transfer may be ordered where the judgment-debtor actually and voluntarily resides, carries on business, or personally works for gain within the proposed executing court's local jurisdiction.

Section 39(1)(b): Property available in another jurisdiction

Transfer may be appropriate where the judgment-debtor lacks sufficient property within the original court's jurisdiction to satisfy the decree but has property within the jurisdiction of the other court.

Section 39(1)(c): Immovable property outside jurisdiction

Where the decree directs sale or delivery of immovable property situated beyond the original court's territorial limits, it may be sent to the competent court covering that property.

Section 39(1)(d): Other recorded reasons

The court may transfer a decree for another reason, but must record that reason in writing. This ground is not an unrestricted power: the recipient must still be a court of competent jurisdiction.

Subsections (2), (3) and (4) explained

Subsection (2): The court may act on its own motion and send a decree to a subordinate court of competent jurisdiction.
Subsection (3): Competence is assessed at the time of the transfer application by asking whether the recipient court would have jurisdiction to try the suit in which the decree was passed. Applicable special provisions and procedural rules must also be considered.
Subsection (4): The court that passed the decree is not empowered by Section 39 to execute it against a person or property outside its local territorial limits. A transfer may therefore be required for such execution.

Procedure for transferring a decree

The decree-holder ordinarily applies to the court which passed the decree, identifying the decree, the proposed transferee court, and the applicable ground under Section 39(1).
The court considers whether transfer is justified and whether the proposed court is competent. Where clause (d) is used, reasons must be recorded in writing.
The transfer documentation is sent in accordance with Order XXI Rules 5 and 6 CPC, including the required copy of the decree and certificate or particulars concerning satisfaction or non-satisfaction.
The receiving court proceeds under the applicable execution rules. Section 42 CPC addresses its powers in executing a transferred decree.

Depending on the circumstances, the court may also consider the requirements of Order XXI Rule 10 (application for execution), Rule 11 (contents of application), and Rule 22 (notice in specified cases). State amendments and local court rules may affect procedure.

Illustration

Suppose a money decree is passed by a court in Delhi, but the judgment-debtor has no sufficient attachable property there and owns property within the jurisdiction of a competent court in Jaipur. The decree-holder may seek transfer under Section 39(1)(b). The receiving court can then consider execution in accordance with the CPC and applicable rules.

Section 40 CPC concerns transfer of decrees for execution to courts in another State; Section 41 deals with certification of the result of execution; and Section 42 sets out powers of the court executing a transferred decree. The principal procedural framework is found in Order XXI CPC.

Read the Code of Civil Procedure, 1908 on India Code (official government text). Consult the applicable State amendments and current court rules for any local variations.

This article provides general legal information and is not a substitute for advice on a particular decree or execution proceeding.