Section 36

DEFINITION:
“The provision of this code relating to the execution of decrees (including provisions relating to the payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).”

MEANING AND SCOPE
The principle underlying the provisions of this section is that every court has an inherent power to have its orders carried out, failing which the orders would be a mere fact. This section also makes it quite clear that the provisions relating to the decree shall, so far as they are applicable be deemed to apply to the execution orders.

EXECUTION
Execution is the enforcement of decrees and orders through the process of court, so as to enable the decree- holder to recover the fruits of the judgment. The main rules of procedure are enacted in Part-II of the code and minor rules are to be found in Order 21 of the Code. These, provision apply to decrees which are capable of execution. There is no question of decree which is purely declaratory.

TYPE OF DECREE EXECUTED:
The decree to be executed is the decree of the court of last instance where an appeal has been preferred. The decree of the original court is merged in the decree of the superior court which alone is executable.
Case Study- S.M. Nagori v. Babu Rao (AIR 1956 MB 229), it was held that where there is no appeal, the decree to be executed is the decree of the court of first instance.

APPLICABILITY:
Case Study- Manikalaya v. Narsinhaswami (AIR 1966 SC 470), it was observed by the apex court that under Section 36 of the code the provisions relating the execution of decree are applicable to execution of orders.

NOTICE:
The law does not require any notice to be issued to parties against whom execution is applied for, except in the following cases-
Where an application for execution is made more than one year after the date of the decree or more than one year after the date of the last order made on any previous application for execution.
Where an application for execution is made against the legal representative of the judgment debtor.
Where an application for execution is made of a decree passed by Courts of the UK of any reciprocating territory.
Where the decree is for money and execution is sought against the person of the judgment-debtor unless the proviso applies.
Where the interest of the decree-holder has been transferred by assignment.

NOTE:
This section was substituted against the old one in order to clarify that the provisions relating to execution of a decree or order include payment under a decree or order a well.
Modes of paying money under decree is dealt in Order 21 Rule 1 CPC
Payment out of court to decree holder is dealt in Order 21 Rule 2 CPC
Commencement of execution proceedings is dealt in Order 21 Rule 10 CPC
Who may apply for execution is dealt in Order 21 Rules 11,15 and 16 CPC
Against whom execution may be had is dealt in Order 21 Rule 11 CPC

SECTION 37
The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.

Order 37- CPC (Summary Suits): A neutral analysis
Civil litigation, especially recovery suits generally termed to be a long drawn battle and regarded as something best avoided, is not so. The general belief that by filing a recovery Suit against a Debtor will go on for years at large, is not so, if one knows the real scope of Order 37 of the Civil Procedure Code, 1908.

Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to institute a Civil Suit. Broadly it states as under:
Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and promissory notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated demand in money payable on a written contract, an enactment, where the sum to be recovered is a fixed sum of money or in nature of any debt except penalty, a guarantee – in respect of a debt or liquidated demand.
Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is filed under this Order and no relief which does not fall within the ambit of this Rule is claimed.
Under Order 37, there are two stages of getting the Suit decreed. One is at the stage of Rule 2(3) and the other is at the stage of Rule 2(6).
Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the service of the summons on him. After entering appearance, the Plaintiff serves on the Defendant summons for judgment within ten days from the date of service supported by an Affidavit; verifying the cause of action, amount claimed and that in his belief there is no defence to the suit.
Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the Plaintiff shall be entitled to judgment immediately or (b) the Court may direct the Defendant to give such security as it may deem fit. Sub-clause 7 states that in case sufficient cause is shown, the delay in entering an appearance or in applying for leave to defend the Suit may also be excused.
Rule 2(5) further states that the Defendant may within 10 days from service of such summons for judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to defend, apply for leave to defend and it may be granted to him unconditionally or upon such terms as may appear to the Court to be just. Further, the proviso indicates that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed do not indicate a substantial defence or that the defence is frivolous or vexatious.
A boon in the hands of the Plaintiff
The real benefit of an Order 37 Suit is that unless the Defendant is able to demonstrate that he has a substantial defence in his case, the Plaintiff is entitled to a judgment immediately. This in layman’s language means that the stages of filing a WS within 30 days and not later than 90 days, a rejoinder thereafter, admission/denial of documents, framing of issues by Court, leading evidence, cross-examination by parties, final arguments and then finally the judgment/decree, in an ordinary Civil Suit gets eliminated. So all that a Plaintiff has to show is that it is a case which falls within the ambit of Order 37. Once summons is issued, the ball is in the Court of the Defendant to show that he is entitled to a leave to defend, on grant of which the Order 37 Suit becomes an ordinary Civil Suit and the Defendant is then directed to file his WS within 30 days.

SECTION 38 – “Court by which decree may be executed”
“A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.”
SINDHU CHITS & TRADING (P) LTD. (IN LIQN.) V. KHAJIRUNNISSA
Kedambady Jagannatha Shetty, J. –
This revision petition is directed against the order of the lower Court dated 18-4-1988 made in un-numbered Execution Case on the file of the Munsiff, Kunigal. At the time of admission notice has been ordered, the respondent has failed to appear in spite of the service of notice and he has been treated as ex parte. The facts in this case are that the petitioner-decree holder through the Official Liquidator has filed the Order dated 24-11-1982 passed by this Court (Company Court) directing the judgment debtors 1 and 2 to pay the Decree Holder a sum of Rs. 553,40 together with interest. The office raised an objection stating that the decree is not transferred to this Court as required under Section 38 of the C.P.C, as such the execution is not maintainable.

  1. The learned A.G.P appearing for the Official Liquidator has submitted that the order passed by the Company Court under Section 446 of the Companies Act, can be executed by this Court even though there is no order of transfer as required under Section 38 CPC. The lower Court has held that the order now sought to be executed cannot be executed by this Court in view of Section 38 of CPC, which says that:
    “A decree may be executed either by the Court which passed it or by the Court to which it is sent for execution” and further held that the language of Section 38 is very clear and unless the order is transferred to this Court for execution, this Court has no jurisdiction to execute the same.” Accordingly, the lower Court has held that this Execution petition is not maintainable.
    Hence this Revision Petition.
  2. The learned Counsel appearing for the petitioner has submitted that the Munisff has committed the jurisdictional error in dismissing the execution on the ground that the decree for execution is not transferred under the provision of Section 38 of the Act. He further argued that the provisions of Section 634 and 635 of the Companies Act provide for enforcement of the order made by the Company Court in the same manner as a decree made by the Court in a suit pending therein, which has not been noticed by the lower Court.
  3. The learned Counsel has pointed out, it is an undisputed fact that the Company Court has passed the order under Section 440 of the Companies Act and copy of that order produced before the Court for an execution. But the learned Munsiff has said unless there is transfer as contemplated under Section 38 of the CPC, the Court has no jurisdiction to execute the decree.
  4. That the provision of Section 635 makes it clear that it is sufficient to produce to the Court, which is required to execute its order, a certified copy of the order sought to be executed. The procedure to be followed in the matter of execution of the order made by the Company Court is different from that laid down in the Code of Civil Procedure. The orders of the Company Court are not decrees in the strict sense of the word. But it may be enforced in the same manner as decree. It means, that though an order passed by the Company Court does not amount to a decree for the purpose of execution, they will be treated as though they are decrees and all the provisions of the Code of Civil Procedure relating to the execution of the decree will then apply, Since the procedure to be followed in the matter of execution of the order of the Company Court is different from that laid down in the CPC, it is not necessary to comply with the procedure laid down in Section 38 of the CPC, and Order 21 Rules 4 and 5 of the Civil Procedure Code and get the order first transferred by the Court which made it to the Court which is to enforce it and then make application to execute it. Where the order made by the Company Court is required to be enforced by another Court, a mere production of certified copy of the order, is sufficient without getting the order transferred by the Company Court which is required to enforce the Order by taking necessary steps in the same manner as if it has been made by itself.
  5. The lower Court has committed jurisdictional error in dismissing the execution petition. For the foregoing reason I am of the view that the impugned order of the lower Court is liable to be set aside.
  6. Revision Petition is allowed, the order of the lower Court is set aside and the lower Court is directed to take the execution petition on file and take further steps to enforce the order in accordance with law.

 
SECTION 39- “Transfer of decree”
“(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction],-
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property with in the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in wiring, that the decree should be executed by such other Court.
(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.”
 
STATE AMENDMENTS
Uttar Pradesh- Sub-section (3) of section 39 shall be substituted.
“(3) For the purpose of this section, a court shall be deemed to be a court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits if any of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit”.
[U.P. Act No. 31 of 1978].

SECTION 40
DEFINITION
Where a decree is sent for execution in another (state), it shall be sent to such court and executed in such manner as may be prescribed by rules in force in that (state).

MEANING AND SCOPE
This section applies only when the ‘transferor’ and the ‘transferee’ courts are both regulated by the provisions of the Code of Civil Procedure.
Illustration- A decree passed by Bombay High Court is executable in Goa and the inexecutability if any will come to an end when the provisions of Code of Civil Procedure is applied.
The word ‘manner’ used in this section refers to the procedure under which execution is to be made. It has no reference to the existence or otherwise of the right of execution of the decree. The law of limitation for execution of a decree transferred to another state is the law in force in transferring court, but for procedural rules governing execution, the law of state of the transferee court applies.
Case Study- Binod Mills Co. Ltd. v. Suresh Chandra (AIR 1987 SC 1739(1746)), it was observed by the apex court that, a transferee court has to execute the decree in accordance with the law obtaining in the state where that court is situate.

NOTE:
The absence of rules under this section does not bar execution of decree sent for execution.
Mode of transfer and procedure is dealt in Rules 5 and 6 Order XXI CPC

SECTION 41
DEFINITION
“The Court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution or where the former court fails to execute the same the circumstance attending such failure.”

MEANING AND SCOPE:
The Court to which a decree is sent for execution must certify the results of the execution to the court which passed the decree.
Case Study- Savithri v. Kamal Singh (AIR 1955 Pat. 456), the court held that the transferee court has no power to certify under this section, so long as the execution suit is pending before it.
A certificate under this section has to be issued only when the Court to which the decree is transferred for execution has executed the same and where it fails to execute it, it must certify the circumstance of for such failure.

SHALL CERTIFY:
The term shall certify refers to a formal certification by the transferee court to the transferor court and the fact of certification should not be left open to inference to be drawn from entries in the register of suits of the transferor courts. The provisions regarding certification by the transferee court under this section are mandatory and are of judicial nature and not administrative.
Case Study- G. Pannala v. Apppalobhukatala (AIR 1969 Ori. 147), where the transferee court dismissed the execution case and directed that the transferor court should be informed of the fact of it and a copy of this order was actually filed in the latter court with the application of the decree holder requesting for a transfer to another court, it was held that this section had been compiled with.

NOTE:
Case Study- Yogeshwar Singh v. Jiyal Chaudhary (AIR 1969 Pat. 265), it has been held that the mere sending a copy of the order dismissal without a non-satisfaction report is not compliance with the section.
The effect of certification under this section is to determine the jurisdiction of the transferee court.

SECTION 42- “Power of Court in executing transferred decree”
“(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely-
(a) power to send the decree for execution to another court under section 39.
(b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50.
(c) power to order attachment of a decree.
(d) power to decide any question relating to the bar of limitation to the executability of the decree.
(e) power to record payment or adjustment under Rule 2 of order XXI.
(f) power to order stay of execution under Rule 29 Order XXI,
(g) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI.
(3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy there of to the court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree.”

STATE AMENDMENTS
Uttar Pradesh:
Section 42 shall be substituted by following-

  1. Power of Court in executing transferred decree.
    (1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
    (2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely-
    (a) power to send the decree for execution to another court under section 39.
    (b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50.
    (c) power to order attachment of a decree.
    (d) power to decide any question relating to the bar of limitation to the executability of the decree.
    (e) power to record payment or adjustment under Rule 2 of order XXI.
    (f) power to order stay of execution under Rule 29 Order XXI.
    (g) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause ( c) of sub-rule (1) of Rule 50 of Order XXI.
    (3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy there of to the court which passed the decree.
    (4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree.

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