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CPC, 1908 · Part II · Execution · Transfer

Transfer of decree

A decree need not stay where it was born. Section 39 lets the court that passed it send it for execution to another competent court — on request, or on its own motion.

§ 39

Part II · Execution · Transfer of decrees

How to read Section 39

What it does

Lets the court which passed a decree transfer it to another court for execution — so the decree can be enforced where the debtor or his property actually is.

Two routes

On the decree-holder’s application (grounds (a)–(d)), or the court’s own motion to a subordinate court.

Two limits

The receiving court must be of competent jurisdiction (sub-s. 3); and (sub-s. 4) the passing court still cannot reach beyond its own local limits.

The bare Act

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 within 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 writing, that the decree should be executed by such other Court.

(2)

The Court which passed a 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.

(4)

Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.

Highlighted words — “of competent jurisdiction” and sub-sections (3) & (4) — were inserted by the 1976 Amendment; see the note below.

Key terms decoded

Transfer of decree

Sending a decree from the court that passed it to another court so that the other court may execute it.

Court of competent jurisdiction

A court competent — by its pecuniary and territorial limits — to execute the decree.

Transferee Court

The court to which the decree is sent for execution.

Of its own motion

The court acting suo motu, without an application (sub-section (2)).

How a decree is transferred

The decree leaves its home court and is sent to a competent court where the debtor or his property can actually be reached.

Section 39, sub-section by sub-section

Tap a sub-section to dissect its operative phrases.

1On application
2Own motion
3Competent court
4Safeguard

Sub-section (1) — the core power: the passing court may, at the decree-holder’s request, send the decree to another competent court on any of four grounds.

Any ONE of four grounds opens the door

🏠Ground (a)Debtor resides / works / does business in the other court’s area

💰Ground (b)His property sufficient to satisfy the decree is there, not here

🏞️Ground (c)Decree concerns immovable property situate there

✍️Ground (d)Any other reason, recorded in writing

WhoThe Court which passed a decreeThe court of origin (identified by § 37) holds the power to transfer — no other court can send it.

Triggermay, on the application of the decree-holderDiscretionary (“may”) and set in motion by the decree-holder’s application — not the judgment-debtor’s.

Actionsend it for execution to another CourtThe decree itself is sent to a different court to be executed there.

Qualifierof competent jurisdictionThe receiving court must qualify under sub-section (3). (Words inserted in 1976.)

Ground (a)actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other CourtThe judgment-debtor is based in the other court’s territory.

Ground (b)has not property within 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 CourtHis attachable property sufficient to satisfy the decree lies there, not here.

Ground (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 itThe decree concerns immovable property located in the other court’s area.

Ground (d)if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other CourtA residual ground — any other reason, but it must be recorded in writing.

Sub-section (2) — a second, narrower power: the court can transfer on its own initiative.

No application needed — the court acts on its own

🏛️OriginThe court which passed the decree

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⚙️Suo motuSends it of its own motion

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🏛️DestinationA subordinate court of competent jurisdiction

WhoThe Court which passed a decreeThe same origin court as in sub-s (1) — only it can transfer.

Powermay of its own motion send it for executionSuo motu — the court acts on its own; no application is needed.

Limitto any subordinate Court of competent jurisdictionBut only to a subordinate court — narrower than sub-s (1), which allows any competent court.

Sub-section (3) — what makes a court “competent” to receive the decree. Inserted 1976.

One test decides competence

📅WhenJudged at the time of the transfer application

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⚖️The questionCould this court try the original suit now?

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✅If yesIt is a court of competent jurisdiction

ScopeFor the purposes of this sectionThe definition operates only for § 39 (transfer) — not generally.

Definitiona Court shall be deemed to be a Court of competent jurisdictionA deeming clause — it fixes the gatekeeping test for which court may receive a transferred decree.

Timeif, at the time of making the application for the transfer of decree to itCompetence is judged as of the transfer application — not as of when the suit was first filed.

Testsuch Court would have jurisdiction to try the suit in which such decree was passedThe test: could that court try the original suit now? If yes, it is “competent.”

Sub-section (4) — a safeguard: § 39 does not enlarge the passing court’s own reach. Inserted 1976.

The court’s own arm stops at its border

🏛️Passing courtMay not itself execute…

✖

🚧Its border…against person/property outside its local limits

→

📤InsteadTransfer it to the court that has reach

BarNothing in this section shall be deemed to authoriseA negative clause — § 39 must not be read to confer any power beyond what follows.

Whothe Court which passed a decreeThe limit binds the original court — the one doing the sending.

Action barredto execute such decree against any person or propertyThe forbidden act: itself executing — arrest, attachment, sale — against a person or property…

Boundaryoutside the local limits of its jurisdiction…that lies beyond its own territory. To reach there the decree must be transferred — the court cannot stretch its own arm.

How the sub-sections work as one body

SUB-S (1)

The power

Passing court may transfer — on the decree-holder’s application, on four grounds.

→

SUB-S (2)

+ suo motu

Or on its own motion — but only to a subordinate court.

→

SUB-S (3)

Who may receive

Only a court that could try the suit now is “competent.”

→

SUB-S (4)

The fence

But the sender still cannot reach outside its own local limits.

Read together, § 39 is a single transfer engine: (1) and (2) confer the power — on request or suo motu; (3) qualifies the destination; (4) fences the sender’s own reach. Not four separate rules, but one mechanism for moving a decree to where it can actually bite.

State amendment — Uttar Pradesh

State Amendment · Uttar Pradesh

Amendment of section 39 of Act no. 5 of 1908.

In section 39 of the Code of Civil Procedure, 1908, hereinafter referred to as the said Code, for sub-section (3), the following sub-section shall be substituted, namely:—

“(3) For the purposes 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.”

[Vide Uttar Pradesh Act 31 of 1978, s. 2]

Amendment history

Section 39 was reshaped twice — once for all of India, once for Uttar Pradesh. As a timeline:

1976

Act 104 of 1976 — competence & a territorial safeguard

Change the words “of competent jurisdiction” were inserted in sub-section (1), and the whole of sub-sections (3) and (4) were added (w.e.f. 1 February 1977).

Why to tie “competent jurisdiction” to the power to try the suit itself, and to add a territorial limit — a court cannot execute against a person or property outside its own local limits.

1978

U.P. Act 31 of 1978, s. 2 — Uttar Pradesh recast

Change sub-section (3) was substituted in U.P., re-defining competence by the court’s pecuniary limits instead.

Why U.P. preferred to measure a court’s competence to try the suit by its money-value jurisdiction, rather than the general competence test. See the State-amendment panel below.

How Section 39 connects

Section 39 is the engine of transfer — it makes § 38’s “court it is sent to” a reality. The live links open the provisions around it.

§ 38Court by which executedThe two forums — § 39 supplies the second.

§ 37Court which passed a decreeThe court that does the sending.

§ 2(3)Decree-holderWhose application triggers Route 1.

Ahead in Part II: § 40 (transfer to a Court in another State) → · § 41 (result of execution proceedings to be certified) · § 42 (powers of the transferee Court).

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