Sections 38, 39 and 40 of the Code of Civil Procedure, 1908
Sections 38, 39 and 40 of the Code of Civil Procedure, 1908 regulate the courts by which decrees may be executed, the transfer of decrees for execution, and the procedure when a decree is sent for execution to a court in another State.
- Section 38 identifies the courts that may execute a decree.
- Section 39 sets out when a decree may be transferred to another court for execution.
- Section 39(4) restricts the court which passed the decree from executing it against a person or property outside its local jurisdiction.
- Section 40 governs execution where a decree is sent to another State.
Section 38 CPC - Court by which decree may be executed
A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
Section 39 CPC - 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.
Amendment notes: The words "of competent jurisdiction" and sub-section (3) were inserted by the Code of Civil Procedure (Amendment) Act, 1976, with effect from 1-2-1977. Sub-section (4) was inserted by the Code of Civil Procedure (Amendment) Act, 2002, with effect from 1-7-2002.
Section 40 CPC - Transfer of decree to Court in another State
Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.
Meaning and practical effect of Sections 38, 39 and 40 CPC
Section 38 creates the basic rule that execution may take place either before the court which passed the decree or before a court to which the decree has been transmitted for execution.
Section 39 provides the statutory grounds for transfer. These include the judgment-debtor's residence, business or work for gain within another court's jurisdiction, the presence of property in that jurisdiction, a decree concerning immovable property situated outside the original court's local limits, or another recorded reason justifying execution by another competent court.
Section 39(4) is important because it limits territorial execution by the court which passed the decree. Where execution is required against a person or property outside that court's local limits, transfer to the competent executing court becomes relevant.
Section 40 deals specifically with inter-State execution. When a decree is sent to another State, it must be sent to the appropriate court and executed in accordance with the rules in force in that State.
Note: State amendments, High Court rules and local procedural rules may affect the operation of these provisions in a particular jurisdiction. The applicable local version should be checked before relying on the provision in court proceedings.