Description

Section 39 of the Code of Civil Procedure (CPC), 1908 deals with the transfer of decrees from one court to another for execution. This section is part of the execution process that allows a party to execute a decree in a court that has jurisdiction over the defendant or the defendant’s property, even if the decree was originally passed by a different court. The section ensures that decrees can be executed effectively, regardless of the court’s jurisdiction where the decree was passed.

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Key Features of Section 39 - Transfer of Decree

1. Purpose of Section 39:

   • The primary objective of Section 39 is to ensure that a decree passed by a court can be transferred to another court for execution. This becomes necessary when the party against whom the decree has been passed (the judgment debtor) resides in a different jurisdiction or their property is located in another jurisdiction, and thus the original court cannot execute the decree.
   • It provides a mechanism for transferring the decree to the appropriate court that has the necessary jurisdiction to enforce it.

2. Procedure for Transfer:

   • Section 39(1) allows a decree-holder (the party who won the suit and obtained the decree) to apply for the transfer of the decree to a court with jurisdiction over the defendant or the defendant's property.
   • This application can be made to the court which passed the decree. The court can then order the transfer of the decree to the court with appropriate jurisdiction where the defendant resides or where the defendant's property is situated.

3. When Transfer is Possible:

   • Transfer of a decree is especially needed when:
     • The defendant is located outside the jurisdiction of the court that passed the decree.
     • The defendant’s property is located in a different jurisdiction, which means the original court cannot directly carry out execution proceedings.
     • The court of jurisdiction where the defendant resides or where the defendant’s property is situated is better positioned to enforce the decree.

4. Order of Transfer:

   • The court can order the transfer of the decree to a different court if the decree-holder has established that it is more efficient and practical to execute the decree in another jurisdiction. The court of the original decree will typically transfer the decree on a written application and after a thorough review of the matter.
   • The order transferring the decree must be executed by the court that receives the decree from the original court.

5. Conditions for Transfer:

   • Section 39(2) allows the court receiving the transfer to treat the transferred decree as if it had passed the decree itself. In other words, the new court will treat the transferred decree as its own, and can take all necessary actions for execution under the provisions of the CPC.
   • The court may also make any necessary amendments or directions to facilitate execution in its jurisdiction.

6. Decree Transfer and Multiple Courts:

   • The transferring court has the authority to transfer a decree to a court located in a different district or jurisdiction to ensure that the execution proceeds smoothly. In cases where the original court is unable to execute the decree due to geographical limitations, the transferred court can exercise its jurisdiction over the matter and continue execution.

7. Enforcement of Transfer:

   • Once the decree is transferred, the transferring court will send a copy of the decree and necessary documents to the court receiving the transfer. The new court will then have the authority to execute the decree using the usual methods available under the law, such as attachment of property, arrest of the defendant, etc.
   • The court receiving the transfer can take all necessary actions to enforce the decree as if it had originally passed the decree.

8. Effect of Transfer:

   • The decree remains unchanged when it is transferred to another court. The decree-holder retains the right to execute the decree in the court that receives the transfer. The court of execution may issue fresh summonses or warrants, and the execution proceedings will continue under its jurisdiction.
   • The transferred court is responsible for making decisions regarding the enforcement of the decree in its jurisdiction. The transfer does not affect the substance of the decree itself but ensures that it is properly executed in the appropriate jurisdiction.

Punishment

In the context of decree transfer, there is no direct punishment for the mere transfer of a decree. However, the failure to comply with a decree or to obstruct its execution can result in various legal actions and penalties under the CPC.

1. Failure to Comply with the Decree:

   • If the defendant does not comply with a decree, the court of execution may impose various penalties, including attachment of property, garnishment of wages, and imprisonment for contempt of court.
   • The court may issue a warrant of arrest for the defendant to compel them to comply with the decree.

2. Contempt of Court:

   • If the judgment debtor intentionally disobeys the decree or obstructs the execution process, they can be punished for contempt of court. The court has the authority to imprison the person or fine them as a penalty for their defiance.

3. Obstruction of Execution:

   • Any attempt to obstruct or hinder the execution of a decree could result in the imposition of penalties, including imprisonment for a period as deemed appropriate by the court.
   • If the decree involves specific performance or property transfer, non-compliance can lead to additional fines or orders to compel the defendant to carry out the specific actions ordered by the court.

4. Costs and Penalties:

   • The court may also award compensatory costs to the decree-holder for the delay in executing the decree. The costs of executing the decree, including administrative and legal fees, may be borne by the judgment debtor if they delay or obstruct the process.