Court by which decree may be executed
Full Text
A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
Plain English Summary
Section 38 establishes the core jurisdictional mandate for execution of civil decrees, prescribing that a decree can only be executed either by the court that originally passed it (as defined under Section 37) or by a transferee court to which it has been formally transmitted for execution under Section 39.
Key Legal Elements
- Dual Competence: Confines execution jurisdiction exclusively to (a) the court which passed the decree, or (b) the transferee court.
- Court Passing Decree: Interpreted strictly in terms of the statutory definition in Section 37.
- Transferee Court: Requires formal transmission and certificate of non-satisfaction under Section 39 and Order XXI Rules 5 & 6.
- Prerequisite to Coercive Action: Establishes the jurisdictional foundation before warrants or attachment can issue under Order XXI.
Practical Note
Fundamental Jurisdictional Rule in Execution: (1) Binary Execution Forum: An execution petition cannot be filed randomly in any court where property is situated without a formal transfer. The decree-holder must first apply to the court that passed the decree (Order XXI Rule 10), and if properties or persons lie outside its territorial limits, apply for transfer under Section 39. (2) Transfer / Non-Satisfaction Certificate (Order XXI Rules 5 & 6): Direct execution by a third-party court is without jurisdiction unless transmitted with a formal non-satisfaction certificate or under a precept (Section 46). (3) Transferee Court Powers: Under Section 42, the court executing a transferred decree enjoys identical powers as if the decree were passed by itself.
हिंदी पाठ
डिक्री या तो उसे पारित करने वाले न्यायालय द्वारा निष्पादित की जा सकेगी अथवा उस न्यायालय द्वारा जिसे वह निष्पादन के लिए भेजी जाती है।