The document discusses the courts that may execute decrees under the Civil Procedure Code of 1908 in India. It states that the court of first instance, appellate court, or court with jurisdiction over the subject matter or location may execute a decree. A decree can also be sent to another court for execution. Foreign decrees may be executed in India if they are conclusive, on the merits, from a court with proper jurisdiction, and meet other criteria. Indian decrees can also be sent for execution to foreign courts established by the central government.
The document discusses the courts that may execute decrees under the Civil Procedure Code of 1908 in India. It states that the court of first instance, appellate court, or court with jurisdiction over the subject matter or location may execute a decree. A decree can also be sent to another court for execution. Foreign decrees may be executed in India if they are conclusive, on the merits, from a court with proper jurisdiction, and meet other criteria. Indian decrees can also be sent for execution to foreign courts established by the central government.
The document discusses the courts that may execute decrees under the Civil Procedure Code of 1908 in India. It states that the court of first instance, appellate court, or court with jurisdiction over the subject matter or location may execute a decree. A decree can also be sent to another court for execution. Foreign decrees may be executed in India if they are conclusive, on the merits, from a court with proper jurisdiction, and meet other criteria. Indian decrees can also be sent for execution to foreign courts established by the central government.
The document discusses the courts that may execute decrees under the Civil Procedure Code of 1908 in India. It states that the court of first instance, appellate court, or court with jurisdiction over the subject matter or location may execute a decree. A decree can also be sent to another court for execution. Foreign decrees may be executed in India if they are conclusive, on the merits, from a court with proper jurisdiction, and meet other criteria. Indian decrees can also be sent for execution to foreign courts established by the central government.
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CIVIL PROCEDURE CODE, 1908
TOPIC: COURTS WHICH MAY EXECUTE DECREES {SEC. 36-45}
Execution : meaning
The Term “execution” has not been defined in the code. In
its widest sense, “execution” means enforcing or giving effect to the judgement of the court.
For instance: A Files a suit against B for Rs 10000/- and
obtains a decree against him. Here A is the Judgement- creditor or Decree holder. B is the Judgement- debtor and the amount of Rs 10000 is the judgement- debt or decretal amount. Since the decree is passed against B, he is bound to pay Rs 10000 to A. suppose inspite of decree, B refuses to pay the decretal amount to A, A can recover the said amount from B by executing the decree through judicial process, Courts which may execute decrees Section 37: court passing a decree Section 37 of the Code establishes the scope of the expression “court which passed a decree” with the object of enabling a decree-holder to recover the fruits of the decree.
The courts which fall within the said expression are as follows: The court of the first instance which actually passed decree. The court which actually passed the decree in case of appellate decrees; The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist; The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree. Section 38: Courts by which decrees may be executed Section 38 of the Code states that a decree can be executed either by the Court which passed it or by the Court to which it has been sent for execution.
Where a court which passed the decree has ceased to exist or
ceased to have jurisdiction to execute a decree, the decree can be executed by the court which at the time of making execution application would have jurisdiction in the matter. TRANSFER OF DECREE FOR EXECUTION (SECTIONS 39-42) Section 39 provides that when a decree-holder makes an application to the court of the first instance to send the decree for execution to another court, the court of first instance may do the same if any of the following grounds exist: if the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court; if the property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court; if the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same; if the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the reasons in writing for doing the same. EXECUTION OF FOREIGN DECREES IN INDIA (SECTIONS 43-44-A) The Code lays down the procedure for execution of foreign judgments and decrees in India. While enforcing a foreign judgment or decree in India it should be ensured that the judgment or decree is a conclusive one, given on the merits of the case and by a court having competent jurisdiction. What is a foreign judgment and a foreign decree? Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per section 2(5) of CPC, a foreign court implies a court which is situated outside India and which is not established or continued by the authority of the Central Government. Foreign judgment or decree needs to be conclusive A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment would be conclusive in all cases except the following : When a court of competent jurisdiction has not pronounced it; When it has not been pronounced on the merits of the case; When it has been based on a wrong view of international law or a refusal to recognize the law of India in cases in which such law is applicable; When the proceedings carried out while obtaining the judgment are opposed to natural justice; When such judgment has been obtained by fraud; When it sustains a claim that had been based on a breach of any law in force in India. Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such foreign judgment or decree cannot be enforced in India as such judgment or decree will not be regarded as conclusive if it fails any of these tests. Execution of Indian decrees in a foreign territory (SECTION 45) Section 45 of the Code is related to the execution of decrees outside the territory of India. It states that a Court has the power to send a decree for execution to a Court outside India which has been established by the Central Government’s authority. It should be ensured that the State has, by notification in the Official Gazette, declared the said section can apply to such Court. A plain reading of the aforesaid provision yields the following features: The decree which has to be executed should be of an Indian Court and it should be for execution in a foreign territory. The Central Government should have established the transferee court in such foreign territory. The State Government should have declared by notification in the Official Gazette that this section will apply to the said foreign Court. The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian decree outside the country. Therefore, in the absence of either of the aforesaid conditions in Section 45, an Indian Court has no jurisdiction to send its decree for execution to a Court not situated in India.
