This article intends to explain the Transfer of Decrees for Execution. This article begins with an introduction to what powers the court posses during the execution of a transferred decree. Then, the article delves into a series of judicial precedents to analyze the provisions regarding the transfer of decrees for execution. This is followed by a brief section on the limitations and restrictions placed on the transferee Court. The next necessary question is regarding the execution of foreign decrees in India, after which the article is summed up through a conclusion.
Introduction
On the passing of a decree and transfer of it to another court of competent jurisdiction, the transferor court ceases to have jurisdiction over that decree and only a transferee court can entertain an application for execution.
As per Order 21 Rule 8 of the CPC, if a decree under the provisions of Section 39 has been sent for execution to another district, it can be executed by either the district court to which it was transferred or by a subordinate court which has the necessary jurisdiction, to which the district court may refer it. As per Section 42, the Court to which a decree has been sent for execution has the same powers and authority in the execution of such decree as if that Court itself had passed the decree.
Powers of the Transferee Court
The Court has the authority to punish the individuals who obstruct the execution of a decree. This power shall be exercised by the court as if the decree had been passed by it. The primary intent of the transferee court having these powers is to guarantee that the judgment debtor makes the payment, or do what he is obligated to do as per the decree. The Court has the following powers –
- Section 39 permits for the decree to be sent to another Court for execution
- The Court has the power, as per Section 50, to enforce the execution of a decree against the legal representative of the deceased judgment debtor.
- To order the attachment of a decree.
However, the court to which a decree is transferred will not have the authority to order execution at the instance of the court which sent the decree for execution. Nor does the court to which a decree is transferred have the power to grant leave to execute a decree passed against a firm or company, against any person, unless permitted as per Rule 50 of Order XXI of Civil procedure Code.
As per Section 39 of the Civil Procedure Code, the meaning of ‘another court’ is the court to which the decree is sent. As per the ruling of Chinnaswami v. Annamala[1], it has to be a court in India. This court must have competent jurisdiction. This means that at the time of the transfer of decree, the Court must have had the jurisdiction to try the suit wherein the decree was passed.
It does not imply a court of equal jurisdiction, as clarified through the judgment of Chandrawathi Amma v. Cheripumma[2]. It is important to note that, with the exception of the provisions of Section 45, decrees cannot be sent outside India. This was established through the holding of the case Firm Hansraj v. Firm Lalji Raja & Sons[3].
In the case of Tata Motors Limited and Ors. v. The State of West Bengal and Ors[4]. The Supreme Court held that the executing court has the authority to determine whether or not a decree has been discharged, as per Section 47 of the Code of Civil Procedure.
Recently, the Supreme Court faced a significant question of law, in the case of Trilok Nath Singh v. Anirudh Singh[5] – Does Order 23 Rule A prevent a stranger to the proceedings from challenging a compromise decree? It was held that the bar on challenging a decree based on a compromise between the two parties is also applicable to strangers to the proceedings.
Judicial Precedents on the issue of Transfer of decrees for execution
Section 42 refers to the powers of the court in executing transferred decrees. The Court that executes a decree that it has been sent has the same powers in executing as it would have if it had passed the decree itself.
As seen in the case of Jonalagadda v. Sivaramakrishna Rao[6], the court executing a transferred decree may sell the properties which are outside its territorial jurisdiction, in a situation where the court that passed the decree, could have.
The applications for execution need to be filled for the transferee Court. The Transferee Court continues to have jurisdiction unless and until the execution proceeding is withdrawn or recalled. The transferee Court can lose its jurisdiction if it fails to execute as under Section 41, as held in the case of Vithu v. Ganesh[7].
Simply rejecting an application for execution due to a technicality or mistake made in the application does not place into question the jurisdiction of the transferee court. The transferee court, as seen in the case of Abda Begum v. Muzaffar[8], has no obligation to send a certificate to the court which had passed the decree.
If the application for execution is rejected for non-prosecution and a certificate of failure of execution is sent, then only the transferor court has the authority to deal with a fresh application of execution, in those circumstances.
In the case of Jai Narain v. Kedarnath[9], it was held that the transferee court has the power to determine whether or not the defendant has the capacity to perform his part in a decree for specific performance.[10]
Limitations and Restrictions faced by the transferee court
The jurisdiction of the court which the decree has been sent to is restricted to the execution of that specific decree, and its powers are restricted in the same way as they would have been if this court had passed the decree itself. Therefore, as seen in the case of Pexata v. Digambar[11], as well as Rajerav v. Nanarav[12], the court cannot consider an objection to the legality or accuracy of the decree, unless the decree itself has been attained through fraud, deceit or misleading.
The transferee court is also restricted from selling a property which is not liable for sale, as per Section 60 of the Civil Procedure Code. This was seen in the judgment of Sudhashiv v. Jayanti.[13]
The hands of the transferee court are metaphorically tied, as it is not authorized to alter, add or delete anything from the terms of the decree. As per the judgment of Gajadhar v. Firm Manulal[14], the transferee Court cannot permit future interest where none is permitted by the decree.
As per the judgment of Prithi Chand v. Satya[15], the transferee court does not have the power to question the right of the person entitled to the execution of a decree, if their name is on the record. However, in the case of Radha Kishen v. Bihari Lal[16], it was held that the transferee court has the authority to refuse to execute a decree if the decree is against a deceased party. It was held, in the case of Shaukhat Hussain v. Bhuvaneshwari Devi[17], that the transferee court cannot stay the execution under Order 21, rule 29.
In the case of Hari v. Narsingrao[18], it was held that the transferee court does not have the power to question the jurisdiction of the court which has passed the decree.
In the case of Husein v. Sanju[19], the question of law that was faced by the courts, was whether the transferee court has the power to engage with an objection that was based on the idea that the execution of the decree was barred by limitation at the time when the order for execution was passed. The court responded that the transferee court had no authority or power to question this.
In fact, the court established this further in the case of Sunder Rao v. Appiah Naidu[20], where it held that even if the court which passed the decree did nothing to determine the question of limitation for the execution, that issue will be considered res judicata, and not be open for questioning in the court where the decree has been sent.
Although, it should be noted that the transferee court has the power to fix the mistake if the court which passed the decree has mentioned an incorrect decretal amount, as seen in the case of Mangal Chand v. Dulari.[21] Once the decree has been sent to another court for execution, the transferor court loses the authority to execute that decree[22].
Execution of Foreign Decrees
This part of the article analyzes the enforceability of foreign judgments in India. Foreign decrees are judgments those which have been passed by a court in another country, which is considered capable of being enforced and executed in our country. This is possible through a process detailed in the Civil Procedure Code 1908. As per Section 13(2) of the CPC 1908, a foreign judgment needs to qualify the following criteria, in order to be perceived as ‘conclusive’ to be enforceable in India –
- It should have been pronounced by a court of competent jurisdiction
- It should have been passed due to the merits of the case.
- It should be correct as per international law and must not be inconsistent with Indian laws.
- The proceedings of the judgment should not be in opposition to natural justice
- The judgment must not have been attained through fraud.
- It should not be based on any breach of law that is in force in India.
If all the conditions are fulfilled, the judgment will be considered ‘conclusive’. Foreign judgments are classified in one of the two categories – passed from either a reciprocating territory or a non-reciprocating territory. It is imperative to know why there is a distinction drawn between a reciprocating territory and a non-reciprocating territory, and how it impacts the execution of foreign decrees.
Execution in case of decrees from the reciprocating territory
The procedure for execution of decrees which have been passed by courts of the reciprocating territory is provided in Section 44-A of the Civil Procedure Code. A foreign judgment that has been passed by a recognized reciprocating territory will be directly enforced by conducting execution proceedings as per Order 21 of the Civil Procedure Code. The following countries are some of the notified reciprocating territories recognized by India –
United Kingdom, New Zealand, Bangladesh, U.A.E, Hong Kong, Singapore, Malaysia, Fiji, Trinidad & Tobago, Papua and New Guinea.[23]
After a foreign judgment fulfils the conditions mentioned in Section 13 CPC, and is considered conclusive, which is a money decree, it needs to be ensured that it is well within the laws of limitation of India.
Execution in case of decrees from non-reciprocating territories
If no judgment or decree has been pronounced by a court of a reciprocating territory, it is executed only when a suit on that foreign judgment is filed in a court of competent jurisdiction in India.
In Marine Geotechnics LLC v. Coastal Marine Construction & Engineering Ltd,[24] the Bombay High Court stated that in cases where a decree has been pronounced by a court of a non-reciprocating foreign territory, the decree can be enforced only when a fresh suit has been filed by the decree-holder on that foreign decree or on the original cause of action, or both.
The suit must be filed within three years of the judgment or decree and the foreign decree must pass all tests of Section 13. It was further clarified that Section 13 of the Code provides substantive law while Section 44A of the Code is an enabling provision and enables the decree-holder to put a decree obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses the principles of private international law, that a court will not enforce a foreign judgment of a competent court.
In the case of Bank of Baroda v. Kotak Mahindra Bank[25], the Supreme court held that
it would be extremely unfair and unjust if the person having lost his rights to execute the decree in the cause country is permitted to execute the decree in a forum country. According to this judgment, Section 44 of the CPC simply empowers the District Court to execute the foreign decree, and mandates the District Court to follow the same procedure as it does when executing an Indian decree.
Section 44 does not speak regarding the period of limitation for filing such an execution petition. The Supreme Court further stated that the law of limitation has made a transition from ‘procedural’ to ‘substantive’, especially if it leads to elimination of rights or remedies.
The Court held that if the decree holder does not initiate the procedure for execution of the decree during the limitation period in the cause country, then the period of limitation would start from the date the decree was passed in the cause country, and the period limitation would be that of the cause country.
Alternatively, if the decree holder has initiated the execution proceedings in the cause country, but it has not been satisfied completely yet, the application for execution can be submitted within three years of the completion of the execution proceedings in the cause country
Conclusion
Execution is an absolutely imperative process as it enables decree holders to attain what they are rightfully entitled to. It also helps hold judgment debtors accountable. Execution is a key aspect of the Court’s overarching aim of providing justice in all situations. This is why the concept of Transfer of decree for execution becomes all the more vital.
Transferor and Transferee Courts have different powers and limitations, based on distinct provisions but their objective is the same- to ensure justice for all affected parties, keeping in mind the perspective of all stakeholders.
[1] Chinnaswami v. Annamalai, AIR 1941 Mad 309
[2] Chandrawathi Amma v. Cheripumma, AIR 1966 Ker 318
[3] Firm Hansraj v. Firm lalji Raja & Sons, AIR 1963 SC 1180
[4] Tata Motors Limited and Ors. v. The State of West Bengal and Ors., MANU/WB/0339/2012
[5] Trilok Nath Singh v. Anirudh Singh, 2020 SCC Online SCC 444
[6] Jonalagadda v. Sivaramakrishna Rao, AIR 1944 Mad 145
[7] Vithu v. Ganesh, AIR 1923 Bom 396
[8]Abda Begum v. Muzzafar, (1898) 20 All 129
[9]Jai Narain v. Kedarnath, AIR 1956 SC 359
[10] ‘Comprehensive Study Of Judgments: Sections 37-45’ (Legalserviceindia.com), Available Here
[11] Pexata v. Digambar, (1891) 15 Bom 307
[12] Rajerav v. Nanarav, (1887) 11 Bom 528
[13] Sudhashiv v. Jayanti (1884) 8 Bom 185
[14] Gajadhar v. Firm Manulal, AIR 1925 Pat 807
[15] Prithi Chand v. Satya, AIR 1932 Pat 158
[16] Radha Kishen v. Bihari Lal, AIR 1934 Lah 117
[17] Shaukhat Hussain v. Bhuvaneshwari Devi, AIR 1973 SC 528
[18] Hari v. Narsingrao, (1914) ILR 38 Bom 194
[19] Husein v. Sanju, (1891) ILR 15 Bom 28
[20] Sunder Rao v. Appiah Naidu, 1954 ILR Mys 153
[21] Mangal Chand v. Dulari, 1938 All LJ 980
[22] Supra, Note 10
[23] Sanjeev Kumar and Anshul Sehgal, Execution Of A Decree: When Does The Clock Start Ticking?, Available Here
[24] Marine Geotechnics LLC v. Coastal Marine Construction & Engineering Ltd ., MANU/MH/0267/2014
[25] Bank of Baroda v. Kotak Mahindra Bank, 2020 SCC OnLine SC 324
