Description

Section 42 of the Code of Civil Procedure (CPC), 1908, pertains to the powers of the court when a decree passed by one court is transferred to another court for execution. This section provides clear guidance on the authority and responsibilities of the court receiving the transferred decree, ensuring that it can execute the decree effectively just as the original court could.

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Key Features of Section 42 - Powers of Court in Executing Transferred Decree

1. Purpose of Section 42:

   • Section 42 establishes that when a decree has been transferred to another court, that court has the same powers to execute the decree as the original court.
   • This is essential for ensuring that the decree-holder can pursue the execution of the decree in a different jurisdiction if the original court cannot perform the execution due to jurisdictional constraints (e.g., the defendant or their property is located in another jurisdiction).

2. Execution of Transferred Decrees:

   • The court receiving the transferred decree can take all steps necessary for the execution of the decree. These steps could include actions like issuing execution orders, attachment of property, or arresting the judgment debtor.
   • The decree-holder does not have to initiate a new execution process but can request the transferring court to forward the necessary documents to the court in the new jurisdiction for execution.
   • The receiving court has full jurisdiction over the transferred decree and can perform the same actions that the original court would have been authorized to do if it were executing the decree within its own jurisdiction.

3. Powers of the Receiving Court:

   • Jurisdictional Authority: The receiving court’s power is identical to the original court’s power, meaning it can enforce the decree to the same extent as the court that passed the decree. This includes measures like the attachment of property, sale of property, arrest of the judgment debtor, and other enforcement procedures.
   • Orders and Warrants: The court receiving the transferred decree can issue the necessary warrants of execution, summonses, and other procedural orders to enforce the decree.
   • Seizure of Property: If the execution involves the attachment or sale of property, the receiving court can carry out such orders in the same manner as the original court would have.
   • Arrest of Judgment Debtor: If required, the court can also order the arrest of the judgment debtor to compel them to comply with the decree.

4. Jurisdiction over the Decree:

   • The receiving court has the power to determine and act on any issues related to the decree that may arise during the execution process. For example, it can address the debtor’s non-compliance, objections to the decree, or other procedural issues.
   • Appeals or Objections: If there are objections to the execution, such as claims that the decree should not be executed in this manner, the receiving court will have the authority to resolve these issues, and parties may appeal to higher courts.

5. Continuing the Process:

   • If execution of the decree is not completed in the original court, and the decree is transferred to another court, the transferring court will forward the documents, and the receiving court will continue the execution process.
   • Execution Orders: The original court may issue a certificate of transfer to the receiving court, which will include the details of the decree and any previous execution actions that have been taken.

6. Notice to Judgment Debtor:

   • The receiving court will notify the judgment debtor about the transfer of the decree and inform them that execution is being carried out under the jurisdiction of the new court.
   • The judgment debtor has the right to challenge the execution proceedings if they believe that there are legal grounds for non-compliance or invalidity.

Punishment

1. Non-Compliance with the Decree:

   • If the judgment debtor fails to comply with the decree after it is transferred to the new court, the court can take various enforcement actions to compel compliance.
   • These enforcement actions may include:
     • Attachment of property: The court can order the seizure of the debtor’s assets to satisfy the decree.
     • Sale of property: If the property is attached, the court can order the sale of the property and use the proceeds to satisfy the debt.
     • Arrest: In some cases, the court can issue an order to arrest the judgment debtor to secure their appearance and compliance with the decree.

2. Contempt of Court:

   • If the debtor obstructs the execution process, refuses to cooperate with the court’s orders, or engages in any action that prevents the successful execution of the decree, they may be held in contempt of court.
   • The consequences of contempt can include fines, imprisonment, or both, depending on the severity of the obstruction.

3. Failure to Pay the Decree:

   • If the monetary decree is not paid, the court can order the attachment and sale of property belonging to the debtor to recover the amount owed. The debtor may also face penalties for delays, including interest or compensatory costs as determined by the court.
   • In some cases, the court may imprison the judgment debtor for failing to comply with the decree, especially if the non-compliance is willful.

4. Attachment of Debtor’s Property:

   • The court has the power to attach not only movable property (e.g., vehicles, goods) but also immovable property (e.g., land, buildings). If the debtor has assets in the jurisdiction of the receiving court, these can be seized and used to satisfy the decree.