Introduction
Section 40 of Code of Civil Procedure (CPC) deals with the transfer of a decree from one court to another court in a different state. This provision is crucial for ensuring the effective execution of decrees, particularly when the party against whom the decree is passed resides or has property in a different state.
Scope of Section 40 of CPC
Section 40 of CPC applies to decrees that are passed by a court in one state and are intended to be executed in another state. This includes decrees for the payment of money, delivery of property, or the performance of any specific act.
Procedure for Transfer of Decree Section 40 of CPC
The procedure for transferring a decree under Section 40 of CPC is as follows:
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Application for Transfer: The decree-holder, the party in whose favor the decree has been passed, must make an application to the court that passed the decree for its transfer to a court in another state.
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Contents of Application: The application must contain the following information:
a. The name and address of the decree-holder and the judgment-debtor.
b. The date and particulars of the decree.
c. The reasons for seeking the transfer of the decree.
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Hearing of Application: The court will hear the application and, if satisfied that there is sufficient ground for the transfer, will order the transfer of the decree to the court in the other state.
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Transmission of Decree: The decree will be transmitted to the court in the other state along with a certified copy of the order of transfer.
Execution of Decree in Transferred Court
Once the decree is transferred, it will be deemed to be a decree of the court in the other state and can be executed in the same manner as if it had been passed by that court.
Case Law on Section 40 of CPC
The courts have developed a substantial body of case law on Section 40, providing guidance on the interpretation and application of this provision. Some of the key principles established by the courts include:
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The transfer of a decree is a matter of discretion for the court, and the court will consider all relevant factors before making an order of transfer.
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The purpose of Section 40 of CPC is to ensure that the decree is executed in a court that has jurisdiction over the judgment-debtor or his property.
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The court will not transfer a decree if it appears that the decree-holder is seeking to harass or inconvenience the judgment-debtor.
Section 40 of the CPC plays a vital role in facilitating the execution of decrees across different states. By enabling the transfer of decrees, this provision ensures that parties can effectively enforce their rights and obtain the relief granted by the courts.
Case Law on Section 40 of the CPC
The courts have developed a substantial body of case law on Section 40 of the CPC, providing guidance on the interpretation and application of this provision. Some of the key principles established by the courts include:
- The transfer of a decree is a matter of discretion for the court, and the court will consider all relevant factors before making an order of transfer.
In the case of State Bank of Bikaner & Jaipur v. M/s. Modern Builders Limited: 1991 4 SCC 208, the Supreme Court held that the court has a wide discretion in the matter of transfer of a decree and that the discretion should be exercised judicially, keeping in view the facts and circumstances of each case. The court further held that the convenience of the parties or the mere fact that the judgment-debtor resides in another state is not a sufficient ground for transfer.
- The purpose of Section 40 of CPC Section 40 is to ensure that the decree is executed in a court that has jurisdiction over the judgment-debtor or his property.
In the case of M/s. Oriental Fire & General Insurance Company Limited v. Shri P.L. Malhotra: 1976 AIR SC 426, the Supreme Court held that the object of Section 40 is to facilitate the execution of decrees in cases where the judgment-debtor resides or carries on business in another state or where he has property in that state. The court further held that the mere fact that the judgment-debtor has assets in another state is not a sufficient ground for transfer if it appears that the decree-holder is seeking to harass or inconvenience the judgment-debtor.
- The court will not transfer a decree if it appears that the decree-holder is seeking to harass or inconvenience the judgment-debtor.
In the case of M/s. Associated Builders Company v. State Bank of India: 1978 AIR SC 1088, the Supreme Court held that the court should not exercise its discretion in favor of transfer if it appears that the decree-holder is seeking to harass or inconvenience the judgment-debtor. The court further held that the mere fact that the decree-holder has elected to file an execution petition in a court in another state is not a sufficient ground for transfer.
Conclusion
The case law on Section 40 of the CPC provides valuable guidance on the interpretation and application of this provision. By understanding the principles established by the courts, parties can make informed decisions about whether to seek the transfer of a decree and can effectively argue their cases before the court.