Code of Civil Procedure, 1908 | Execution of decrees

Section 42 CPC: Powers of Court Executing a Transferred Decree

Section 42 of the Code of Civil Procedure, 1908 (CPC) defines the authority of a court to which a decree has been transferred for execution. It generally gives that court the powers it would possess if it had passed the decree itself, while reserving certain decisions to the court that passed the decree.

Key point: The transferee executing court has extensive execution powers, but Section 42(4) expressly excludes specified powers relating to transferees of decrees and execution against certain partners of a firm.

Section 42 CPC - Statutory provision

42. Powers of Court in executing transferred decree

(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 the provisions 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, namely:-

(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 Court 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 such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.

For the authoritative enactment and any subsequent amendments, consult the Code of Civil Procedure, 1908 on India Code. State amendments and applicable High Court rules may also affect local procedure.

Meaning and scope of Section 42

A decree is the formal expression of an adjudication conclusively determining the rights of parties regarding matters in controversy in a suit, within the meaning of Section 2(2) CPC. A decree-holder is a 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 a person against whom a decree has been passed or an executable order has been made (Section 2(10)).

The court which passed the decree is understood with reference to Section 37. Under Section 38, a decree may be executed by that court or by a court to which it is sent for execution. A court receiving the decree is commonly called the transferee court or executing court.

Powers available to the transferee executing court

1. General execution powers - Section 42(1)

The receiving court may use the execution procedures legally available to it, including appropriate processes under Order XXI CPC. It can address disobedience or obstruction within the applicable statutory safeguards. Its execution orders are subject to the same appeal rules as corresponding orders made in execution of its own decrees; this does not mean every execution order is independently appealable.

2. Further transfer - Section 42(2)(a)

The executing court may send the decree to another court under Section 39 CPC, subject to the requirements of that provision and territorial limits.

3. Deceased judgment-debtor - Section 42(2)(b)

Under Section 50 CPC, execution may proceed against a deceased judgment-debtor's legal representative as permitted by law. Liability is generally limited to the deceased's property that came into the representative's hands and was not duly disposed of.

4. Attachment of a decree - Section 42(2)(c)

The court may order attachment of another decree in accordance with the applicable procedure, including Order XXI Rule 53 where relevant.

5. Reporting orders - Section 42(3)

When exercising a power listed in subsection (2), the transferee court must send a copy of its order to the court that passed the decree. Separately, Section 41 CPC requires certification of the result of execution or the circumstances of failure.

Express limitations under Section 42(4)

  • Transferee of the decree: Section 42 does not empower the receiving court to order execution at the instance of a transferee of the decree. Questions of assignment and execution must be addressed under the applicable law, including Order XXI Rule 16.
  • Decree against a firm: The receiving court cannot grant leave to execute against persons outside the categories identified in Order XXI Rule 50(1)(b) and (c). The applicable requirements for proceeding against additional persons must be satisfied before the competent court.

How execution of a transferred decree works

  1. The decree-holder seeks execution or transfer before the competent court under Sections 38 and 39 CPC and Order XXI.
  2. The decree and prescribed documents are sent to the receiving court under Order XXI Rules 5 and 6, as applicable.
  3. The receiving court proceeds with execution under its lawful powers, subject to Sections 42 and 47 and the relevant rules.
  4. Where a Section 42(2) power is exercised, the receiving court forwards a copy of its order to the originating court.
  5. The receiving court certifies the outcome of execution, or the circumstances preventing execution, under Section 41 CPC.

Practical example

A civil court in Delhi passes a money decree, but the judgment-debtor has attachable property in Jaipur. If the decree is properly transferred to a competent Jaipur court, that court can undertake lawful execution steps as though the decree were its own, including attachment in accordance with Order XXI. It must nevertheless respect the specific restrictions in Section 42(4).

Read Section 37 (court which passed a decree), Section 38 (executing courts), Section 39 (transfer of decree), Section 40 (inter-State transfer), Section 41 (certification) and Section 47 (execution disputes).

Frequently asked questions

Can the transferee court attach property?

Yes, when attachment is a legally available mode of execution and the requirements of Order XXI and jurisdictional rules are met.

Can a transferee executing court transfer the decree again?

Yes. Section 42(2)(a) expressly recognizes that power, subject to Section 39.

Does Section 42 give every power of the original court?

No. Section 42(4) reserves specified powers, and all execution remains subject to other applicable provisions and procedural safeguards.

Legal information: This article is general educational information and not a substitute for advice on the facts of a particular execution proceeding.