(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.
Section 39—Permissive not mandatory:
The provisions of section 39 are permissive and not mandatory. An application for transfer is not required to be in any particular form.
Principle and Limits—No execution beyond Territorial limits—relaxation by Explanation:
The word ‘may’ used in section 39(1) does not imply that the court passing the decree is also inherently clothed with a jurisdiction to execute the decree relating to property outside its local jurisdiction. The word “may” only shows that a judicial discretion is given to the court in the matter to prevent an abuse of the remedy of transfer of decree sought to be employed either by collusion or by malice or under other consideration. Accordingly the court passing the decree has no jurisdiction in proceedings in execution of the decree to attach property situate outside its territorial jurisdiction. In fact, territorial jurisdiction is a condition precedent to a court executing a decree.
The Explanation to section 37 is founded on this principle though it relaxes it to the extent that the court of first instance would not cease to have jurisdiction to execute the decree merely on the ground that the property situate within its local jurisdiction is after institution of the suit or passing of the decree transferred outside its jurisdiction to the jurisdiction of some other court.
Suo Motu Transfer of Decree:
Under the provisions of section 39(2) it is permissible for the Court which passed a decree to send it for execution of its own motion to any subordinate Court of competent jurisdiction. The expression ‘competent jurisdiction’ does not authorise the aforesaid court to transfer the decree to any court for execution irrespective of pecuniary jurisdiction.
It refers to territorial and pecuniary jurisdiction to deal with the decree and not competency to try the original suit, the test being the value of the decretal amount and not the original value of the suit.
Validity of transfer of execution of decree suo motu:
Section 38 provides that the decree may be executed by the Court which passed it or by the Court to which it is sent for execution. Sub-section (1) of Section 39, C.P.C. sets out the conditions in which a decree may be transferred. Power under sub-section (2) of Section 39 could be exercised for administrative reasons to ensure expedition in execution of the decree, etc.
In case of Delhi, for instance, the Civil Nazarat is located at the District Courts. The warrants for possession and warrants for sale or attachment of properties, etc. are executed through the Administrative Civil Judge. In such circumstances, if the Court may find that the decree can be conveniently and expeditiously executed by the District Court, it may in the exercise of powers under sub-section (2) of Section 39, C.P.C. send the decree for execution to the District Courts.
Accordingly, it was held that the exercise of the powers to transfer under sub-section (2) of Section 39, C.P.C. could be exercised independently of the powers under sub-section (1) of Section 39, C.P.C.