Transfer of decree

2016 YLR 1147 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 39, 42, 46, O. XXI, R. 6 & O.XXXVII, Rr.1, 2Recovery of moneyExecuting CourtTerritorial jurisdictionTransfer of decree

Money decree was passed by Court at place "F" and to satisfy the decree, Executing Court attached amount lying in account of judgment debtor at place "K"

Plea raised by judgment debtor was that bank account at place "K" was outside territorial jurisdiction of Executing Court at place "F"

Validity

If judgment debtor did not own property within the local limits / territorial jurisdiction of Court passing decree, sufficient to satisfy the decree, the decree could be transferred to the Court within the local limits of whose jurisdiction judgment debtor's other property was situated

Transferee Court could execute decree against such property as was situated within its territorial limits, otherwise no purpose would be served by keeping execution petition pending in the Court which had passed the same

Proper course for Executing Court was that for the satisfaction of decree, it should have transferred execution petition under S. 39, C.P.C. read with O. XXI, R. 6, C.P.C. to the Court, where bank accounts of judgment debtor were lying or where judgment debtor was residing

High Court set aside order passed by Executing Court and matter was remanded for deciding execution petition afresh

Appeal was allowed accordingly.

2016 CLC 1085 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 39, 42, 46 & O. XXI, R.6Execution of decreeTransfer of decreePowers of Court executing transferred decreePreceptsTerritorial jurisdiction of executing courtDetermination

Executing Court at place "F" attached the Bank accounts of the judgment debtor at place "K" and in satisfaction of the decree transferred the amount lying in those accounts in the account of the decree holder

Validity

Under S.39(1), C.P.C., transfer of the decree might be made on application of the decree holder; whereas, S.39(2), C.P.C. gave Suo Motu powers to the executing court to transfer the decree to the court of competent jurisdiction

Term 'competent jurisdiction' referred to territorial and pecuniary jurisdiction to deal with the decree and not the competence of the court to entertain the suit, in which the decree was passed

Under S.42, C.P.C., the transferee court could exercise the same powers as those exercised by the transferor court

Impugned order of the executing court to attach and transfer the amount lying in the Bank accounts at "K" was beyond its territorial jurisdiction

Under S.46 (1) & (2), C.P.C., proper procedure for the executing court was to issue a precept for the attachment of the bank accounts of the judgment debtor to the court in whose territorial jurisdiction the same were located

Executing court should have transferred the execution petition under S.39 read with O.XXI, R.6, C.P.C. to the court where the bank accounts of the judgment debtor were lying or where the judgment debtor was residing

No provision of law existed under which the executing court could attach or make an order for transfer of the amount lying in the Bank account falling outside of its territorial jurisdiction

Courts were bound to follow the procedure prescribed by the law

High Court, setting aside impugned order, restored the execution petition for the executing court to pass appropriate order

Appeal was allowed in circumstances.

2013 CLC 300 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 37 & 38 & 39Execution of decreeTransfer of decreeScopeDecree could be executed either by the court which passed it, or by the court to which it was sent for execution

Court could transfer the decree for execution to another court on the ground that if the person against whom the decree was passed actually and voluntarily resided or carried on business, or personally worked for gain with the local limits of the jurisdiction of such other court; that if such other person had no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree; and had property within the local limits of the jurisdiction of such other court; that if the decree directed the sale or delivery of immovable property situated outside the local limits of the jurisdiction of the court which passed it; and that if the court which passed the decree considered for any other reason, which it would record in writing that the decree should be executed by such other court

Decree could be transferred under subsection (1) of S.39, C.P.C., on application of decree-holder in said four eventualities

Two conditions appearing necessary for sending a decree for execution to another court, firstly, was that it would be a court subordinate to the court which passed the decree; and secondly that it would be a court of competent jurisdiction

Jurisdiction could be territorial and pecuniary

Competent jurisdiction could be that the court had power to try the suit and jurisdiction to execute the decree

Power under subsection (2) of S.39, C.P.C., to send the decree for execution to subordinate court of competent jurisdiction could be exercised without meeting the requirements of sub-clauses (a) to (d) of subsection (1) of S.39, C.P.C.

If the amount of decree would exceed the pecuniary jurisdiction of executing court, such court was not a court of competent jurisdiction

Decree could only be executed by a court competent to try the original suit and execute a decree

If the decretal amount was such beyond the jurisdiction of the court to which the decree was transferred, then the decree could not be transferred to such court for execution

High Court under S.39, C.P.C., could only transfer a decree for execution to a court subordinate to it and of competent jurisdiction.