Section 42 of CPC deals with the powers of the court to which a decree is sent for execution. The court to which the decree is sent is referred to as the executing court, and it has the same powers in executing the decree as if it had been passed by itself. This means that the executing court can take all necessary steps to enforce the decree, including:
- Issuing a warrant of arrest or attachment of property
- Appointing a receiver
- Selling property
- Making payments to the parties
Scope of Section 42 of CPC
Section 42 of CPC applies to decrees that are sent for execution to a court other than the court that passed them. This can happen in a number of cases, such as:
- When the judgment debtor resides or carries on business in the jurisdiction of the executing court
- When the property to be executed is situated in the jurisdiction of the executing court
- When the court that passed the decree is unable to execute it itself
Powers of Executing Court
The executing court has the same powers in executing a transferred decree as if it had been passed by itself. This means that the executing court can:
- Issue orders to the judgment debtor to comply with the terms of the decree
- Punish the judgment debtor for disobeying or obstructing the execution of the decree
- Make any other orders that are necessary for the execution of the decree
Appeals from Orders of Executing Court
Orders passed by the executing court in execution of a transferred decree are appealable to the court of which it is a subordinate court. This means that if the executing court is a subordinate court, appeals from its orders will lie to the High Court. However, if the executing court is a High Court, appeals from its orders will lie to the Supreme Court.
Case Laws on Section 42 of CPC
Here are some of the important case laws on Section 42 of the Code of Civil Procedure (CPC):
M.L. Kapoor & Sons v. Union of India (1969):
In this case, the Supreme Court of India held that the powers of the court to which a decree is sent for execution are not limited to the powers of the court that passed the decree. The court held that the executing court has the same powers in executing the decree as if it had been passed by itself. This means that the executing court can take all necessary steps to enforce the decree, including issuing a warrant of arrest or attachment of property, appointing a receiver, selling property, and making payments to the parties.
Ram Rattan v. State Bank of India (1970):
In this case, the Punjab and Haryana High Court held that the executing court is entitled to make its own findings on the facts of the case, and that the findings of the court that passed the decree are not binding on the executing court. This means that the executing court can re-examine the evidence and come to its own conclusions about the facts of the case.
S.K. Jain v. National Insurance Co. Ltd. (1981):
In this case, the Delhi High Court held that the executing court is not bound by the interpretation of the decree given by the court that passed the decree. The court held that the executing court is entitled to interpret the decree in its own way, and its interpretation will be binding on the parties.
Sunder Singh v. State of U.P. (2001):
In this case, the Supreme Court of India held that the executing court is entitled to make orders for the protection of the property to be executed. The court held that the executing court can pass orders to prevent the judgment debtor from disposing of or damaging the property, and can also appoint a receiver to take possession of the property.
Anil Kumar Sharma v. Sudesh Kumari (2012):
In this case, the Delhi High Court held that the executing court has the power to set aside the sale of property if it is found that the sale was conducted in an irregular or improper manner. The court held that the executing court can also order a fresh sale if it is necessary to do so in order to protect the interests of the parties.
These case laws have clarified the scope of Section 42 of CPC and have laid down important principles for the execution of decrees. They provide guidance to the executing courts and to the parties involved in execution proceedings.
Conclusion
Section 42 of CPC plays an important role in ensuring that decrees are executed effectively. By granting the executing court the same powers as if it had passed the decree itself, the CPC ensures that the judgment debtor is compelled to comply with the terms of the decree.