Transfer of Decrees and Orders (Section 39 of Civil Procedure Code)) is a crucial provision that addresses the transfer of decrees and orders. It empowers the court to transfer these decrees and orders for execution to another court.
Transfer for Execution:
The primary purpose of Section 39 is to enable the court that passed the decree or order to send it to another court for execution if the judgement debtor resides or the property is situated in the jurisdiction of the other court.
Cases Where Transfer Can Occur:
The Transfer of Decrees and Orders (Section 39 of Civil Procedure Code)) can happen when a decree or order is to be executed outside the jurisdiction of the court passing it. It is also applicable when the decree-holder desires the transfer for the sake of convenience.In situations where decrees or orders need to be executed in foreign territories, the principles outlined in Section 44A of the CPC, which pertain to the execution of decrees issued by foreign courts, may be relevant.
Discretionary Power of the Court:
The power to transfer under Section 39 is discretionary, and the court has the authority to decide whether it is appropriate to transfer a decree or order. The court will consider factors like convenience, justice, and practicality before making a decision.
Procedure for Transfer:
The party seeking the transfer must make an application to the court that passed the decree or order. The court will then issue a notice to the opposite party, providing an opportunity to be heard. After considering the arguments, the court will decide whether to transfer the decree or order.
Limits on Transfer:
The transfer is subject to certain limitations, and the court to which the transfer is sought must be competent to execute the decree or order. The court receiving the transferred decree or order must follow the same procedure as if it had originally passed the decree or order.
Power of High Courts:
High Courts, being courts of record, have inherent powers, and Section 39 is supplementary to these powers. High Courts can transfer decrees or orders not only within their own jurisdiction but also to courts in other states.
Example and Analysis:
Example: Mr. A obtained a decree for the payment of a sum of money against Mr. B from a court in State X. However, Mr. B moved to State Y, and his assets are located there.
Analysis: In this case, Mr. A can apply to the court in State X, which passed the decree, to transfer it to a court in State Y for execution. Section 39 allows for such transfer when the judgment debtor resides or the property is situated outside the jurisdiction of the court passing the decree.The transfer of the decree from State X to State Y would enable Mr. A to effectively execute the decree, as it would be more convenient to enforce it in the jurisdiction where Mr. B currently resides and where his assets are located.
Transfer of Decrees and Orders (Section 39 of Civil Procedure Code)) allows for the transfer of decrees and orders to another court for execution when the judgement debtor resides or the property is situated outside the jurisdiction of the court that passed the decree.
Recent Update:
In the case of S. Ezhilarasan vs. K. Gomathi, the court held that Section 38 of the Civil Procedure Code (CPC) is subject to Section 39(4) of the CPC, which was introduced later. This means that Section 39 of the CPC, which deals with transfer of decrees, applies to suits and proceedings before the Family Court. Section 18(3) of the Family Courts Act is also subject to Section 39(1)(a) and (4) of the CPC. The court further stated that a Family Court cannot execute a decree personally against a judgement debtor who resides or works within the jurisdiction of another Family Court. Such decrees are liable to be transferred to the Family Court where the judgement debtor resides or works. The court noted that the intent behind Section 39(4) of the CPC is to ensure speedy and effective execution of decrees, even if it inconveniences the decree holder.
REFERENCE:
