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CPC, 1908 · Part II · Execution · Transfer

Powers of Court in executing a transferred decree

Once a decree is transferred, the receiving court does not borrow a weaker hand. Section 42 gives it the same powers as the court that passed it — with a few defined additions and limits.

§ 42

Part II · Execution · The transferee court’s powers

How to read Section 42

What it does

Arms the transferee court with the same execution powers as the court which passed the decree — as if it had passed the decree itself.

Adds & limits

Sub-s (2) spells out key powers; sub-s (3) keeps the origin court informed; sub-s (4) withholds two powers.

Watch the State law

In Uttar Pradesh, the whole section was substituted — with a wider list of powers. See the State-amendment panel below.

The bare Act

42. Powers 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 execution of 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.

(3)

A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof 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 any of the following powers, namely:—

(a)power to order execution at the instance of the transferee of the decree;

1976 The original section was renumbered as sub-section (1), and sub-sections (2)–(4) were inserted, by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), s. 19, w.e.f. 1 February 1977.

Key terms decoded

Transferred decree

A decree sent to another court for execution under §§ 39–40.

Same powers as if passed by itself

The transferee court executes the decree with the powers of the court that passed it — but subject to the limits in § 42.

Executing Court

The court to which the decree has been transferred and which now carries it out.

Section 42, sub-section by sub-section

Tap a sub-section to dissect its operative phrases.

1Same powers
2Included powers
3Copy to origin
4Powers withheld

Sub-section (1) — the executing court acts as if it had itself passed the decree, with three consequences.

Same shoes, three consequences

⚙️PowersSame execution powers as the original court

⚖️DisciplinePunish disobedience / obstruction the same way

📄AppealIts orders carry the same appeal rules

Equivalenceshall have the same powers in executing such decree as if it had been passed by itselfThe core fiction — the executing court wields the same execution powers as the court of origin.

ContemptAll persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decreeIt can punish disobedience or obstruction exactly as the original court could.

Appealits order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itselfIts execution orders attract the same appeal rights as if it had passed the decree.

Sub-section (2) — without cutting down (1), three powers of the original court are expressly included. Inserted 1976.

Three powers, put beyond doubt

➡️(a) § 39Re-transfer the decree onward

👤(b) § 50Proceed against the deceased debtor’s legal rep

🔗(c)Order attachment of a decree

ScopeWithout prejudice to the generality of the provisions of sub-section (1)(2) does not narrow (1) — it only spells out powers beyond argument.

Includesshall include the following powers of the Court which passed the decreeThese powers of the original court are confirmed for the executing court.

(a)power to send the decree for execution to another Court under section 39It can itself re-transfer the decree onward.

(b)power to execute the decree against the legal representative of the deceased judgment-debtor under section 50It can proceed against the legal representative of a dead judgment-debtor.

(c)power to order attachment of a decreeIt can attach a decree (a decree treated as property).

Sub-section (3) — using a (2) power triggers a duty to keep the origin court informed. Inserted 1976.

Use a (2) power → send a copy back

🏛️Executing courtPasses an order under sub-s (2)

→

📄A copygoes to the court which passed the decree

TriggerA Court passing an order in exercise of the powers specified in sub-section (2)Whenever it exercises one of the sub-s (2) powers…

Dutyshall send a copy thereof to the Court which passed the decree…it must send a copy of that order back to the origin court — the reporting discipline of § 41 carried into these powers.

Sub-section (4) — two powers are expressly withheld from the executing court. Inserted 1976.

Two powers it does NOT get

✖(a)Execution at the transferee’s (assignee’s) instance

✖(b)Extra firm-decree leave beyond O.XXI r.50(1)(b)/(c)

BarNothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powersA negative clause — these powers are not given to the executing court.

(a)power to order execution at the instance of the transferee of the decreeIt cannot let an assignee of the decree execute — that stays with the court which passed it.

(b)in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXIFor a firm decree, it cannot grant leave to execute against partners beyond those covered by Order XXI r.50(1)(b)/(c).

How the sub-sections work as one body

SUB-S (1)

Same powers

The executing court stands in the original court’s shoes.

→

SUB-S (2)

Included powers

Three powers spelled out, beyond doubt.

→

SUB-S (3)

Keep origin informed

Copy the (2)-power orders back.

→

SUB-S (4)

The carve-outs

Two powers withheld.

One grant of power, bounded: the executing court is equal to the original for execution (1), with named additions (2), a reporting duty (3), and two exceptions (4). Power — but fenced and accountable.

What the executing court can — and cannot — do

It stands in the original court’s shoes for execution, with a defined set of additions and two withheld powers.

State amendment — Uttar Pradesh

State Amendment · Uttar Pradesh

Substitution of a new section for section 42 — U.P. Act 14 of 1970, s. 2.

For section 42 of the Code of Civil Procedure, 1908, as amended in its application to Uttar Pradesh (hereinafter referred to as the said Code), the following section shall be substituted and be deemed to have been substituted with effect from December 2, 1968, namely:—

42. Power of court in executing transferred decree.

(1)

(2)

(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 of 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 thereof 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 transferee of a decree.

[Vide Uttar Pradesh Act 14 of 1970, s. 2]

What the Uttar Pradesh amendment does

Nature of the amendment

It is a full substitution — U.P. Act 14 of 1970 replaced the whole of Section 42 in its application to Uttar Pradesh, and (unusually) deemed it to operate retrospectively from 2 December 1968. It also pre-dates the Centre’s own 1976 insertion of sub-sections (2)–(4): U.P. had already enlarged the executing court’s powers eight years earlier.

Central § 42

sub-s (2) — included powers

(a) re-transfer (§ 39)
(b) against legal rep (§ 50)
(c) attach a decree

sub-s (4) — withheld

(a) execution at transferee’s instance
(b) extra firm-decree leave

Uttar Pradesh § 42

sub-s (2) — included powers

(a)–(c) same, and in addition —
(d) decide limitation / executability
(e) record payment / adjustment (O.XXI r.2)
(f) order stay of execution (O.XXI r.29)
(g) firm-decree leave

sub-s (4) — withheld

(a) execution at transferee’s instance only
no separate firm-leave bar — firm leave is a granted power under (2)(g)

Effect in Uttar Pradesh

The executing (transferee) court in U.P. is markedly more autonomous. It can itself decide questions of limitation, record payment or adjustment, stay execution, and grant firm-decree leave — without remitting those questions to the court that passed the decree. Inter-court execution is therefore more self-contained and quicker in U.P. And because firm-decree leave is granted (sub-s 2(g)) instead of withheld (the central sub-s 4(b)), a U.P. executing court can do for firm decrees what a court elsewhere must leave to the original court.

Amendment history

Section 42 carries two layers of change — one for Uttar Pradesh, one for the whole of India. As a timeline:

1970

U.P. Act 14 of 1970, s. 2 — Uttar Pradesh recast

Change the whole section was substituted in U.P. — the executing court’s sub-section (2) powers were expanded to seven [(a)–(g)] and the withheld powers in sub-section (4) narrowed to one (deemed effective 2 December 1968).

Why U.P. chose to give its executing courts markedly wider authority over a transferred decree than the Central section allows. Full clause-by-clause comparison in the State-amendment panel below.

1976

Act 104 of 1976, s. 19 — the Central section grows

Change the original Section 42 was renumbered as sub-section (1), and sub-sections (2), (3) and (4) were inserted (w.e.f. 1 February 1977).

Why the 1976 Amendment spelt out the executing court’s extra powers and the limits on them, which until then had stood as a single undivided sentence.

How Section 42 connects

Section 42 powers the court that § 39/40 sent the decree to, and feeds the reporting of § 41. The live links open the provisions around it.

§ 39Transfer of decreeHow the decree reached this court.

§ 41Result certifiedThe report-back that pairs with sub-s (3).

§ 37Court which passed a decreeWhose powers the executing court borrows.

Does the executing court have the power?

Is it a power the original court had in execution? — generally yes (sub-s 1), incl. § 39 re-transfer, § 50, attachment (sub-s 2).
Is it execution at the transferee/assignee’s instance, or extra firm-leave? — no (sub-s 4).
In U.P.? — add limitation, payment/adjustment, stay and firm-leave (the substituted section).

Ahead in Part II: § 43–45 (execution of decrees of, and in, certain other courts) → · § 46 (precepts) · § 47 (questions to be determined by the executing Court).

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