Section 23 CPC: To what Court application lies

Section 23 of Code of Civil Procedure: To what Court application lies

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

Legal Commentary & Landmark Judgments: Section 23

Section 23 of the Code of Civil Procedure, 1908 prescribes the precise judicial forum before which a defendant must present an application under Section 22 to transfer a suit between courts of concurrent jurisdiction.

Procedural Rule & Jurisdiction: The operational scope of Section 23(3) underwent critical constitutional and statutory interpretation following the 1976 CPC Amendment, which substituted Section 25 to confer plenary inter-state transfer powers exclusively upon the Supreme Court.
Jurisdiction & Compliance: The Supreme Court settled the interplay in Durgesh Sharma v.
Adjudication Standards: Jayshree, holding that a High Court cannot transfer a suit outside its territorial jurisdiction to a court subordinate to another High Court; therefore, inter-state transfers must be sought exclusively before the Supreme Court under Section 25, confining Section 23(3) to intra-state declarations or historical comity.

If transfer is sought between courts situated in different districts within the same State, a transfer civil miscellaneous petition lies to the High Court under Section 23(2) read with Section 24.

Key Landmark Precedents:

Durgesh Sharma v. Jayshree, (2008) 9 SCC 447: The Supreme Court authoritatively held that following the 1976 substitution of Section 25 CPC, the Supreme Court alone has exclusive jurisdiction to transfer a civil proceeding from a court in one State to a court in another State; Section 23(3) cannot be utilized by a High Court to order an inter-state transfer.
Puran Chand v. State of Punjab, AIR 1966 Punj 464: The High Court clarified that an application under Section 23 is not an independent original proceeding, but a procedural step dependent entirely on satisfying the substantive conditions of Section 22.

Legal Commentary:

In modern civil practice, applications seeking transfer of proceedings between different subordinate courts in the same district must be addressed to the Principal District Judge under Section 23(1). If transfer is sought between courts situated in different districts within the same State, a transfer civil miscellaneous petition lies to the High Court under Section 23(2) read with Section 24.

Section 23: To what Court application lies

Section 23 of Code of Civil Procedure: To what Court application lies

Legal Commentary & Landmark Judgments: Section 23