T. Kalaiselvan, Advocate (Advocate) 18 May 2023
That particular legal measure is called Execution of Decree and this measure is ordinarily initiated by filing an Execution Petition in the court where the decree was passed.
An execution application is not continuation of suit. It is separate from and independent of a suit.
It is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another Court. However, having regard to the object and purpose of Sections 37 to 39 and construing Section 37 and 38 according to the language used therein, the Section empowers the decree holder to file an execution application either to the Court that actually passed the decree or to the Court that can effectively execute it and in the later case, it is not necessary to comply with the provisions of Section 39 of the Code. The Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of transfer and if it entertains the application with reference thereto, it would be proper exercise of its jurisdiction.
Dr J C Vashista (Advocate) 18 May 2023
Execution of a decree is governed by Section 37 & 38 of the Code of Civil Proocedure, 1908 which states:
Section 38 of the Code states that a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.
Section 37 of the Code further 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:
1. The court of the first instance;
2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist;
4. 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.
Explanation to the section clarifies that the court of first instance shall have jurisdiction to execute a decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction to execute the decree, provided that the said court had jurisdiction to try the said suit when the application for execution was made.
Siddhi 20 May 2023