Section 38 CPC: Court by which decree may be executed

Section 38 of Code of Civil Procedure: Court by which decree may be executed

Official Bare Act Text

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

A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Legal Commentary & Landmark Judgments: Section 38

Section 38 of the Code of Civil Procedure, 1908 defines the judicial competence for execution, establishing that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution.

Statutory Powers & Jurisdiction: Section 38 provides the jurisdictional gateway to execution under the Code.
Inquiry & Trial Mechanism: It enacts that 'A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.' The section bifurcates execution competence into the original trial court that rendered the judgment and the transferee execution court receiving the decree under Section 39.

Section 37 supplements Section 38 by defining the 'court which passed a decree' to include: (a) where the decree to be executed was passed in appeal, the court of first instance; and (b) where the court of first instance has ceased to exist or ceased to have jurisdiction, the court which would have had jurisdiction to try the suit at the time of execution application.

Key Landmark Precedents:

Merla Ramanna v. Nallaparaju, AIR 1956 SC 87: The Supreme Court held that an application for execution must be filed in the court of first instance which passed the decree, or the court to which it is transferred under Section 39; an execution filed in a court lacking territorial jurisdiction is incompetent.
Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622: The Supreme Court examined Section 38 principles in arbitration enforcement, ruling that execution of an arbitral award can be filed anywhere in India where the judgment debtor has assets, without requiring a transfer certificate from the seat court.

Legal Commentary:

The decree-holder must initiate execution proceedings in the court of first instance that passed the decree. If the judgment-debtor's assets or person are situated outside that court's territorial limits, the decree-holder must apply under Section 39 for a formal transfer of the decree along with a non-satisfaction certificate to the executing court having local jurisdiction.

Section 38: Court by which decree may be executed

Section 38 of Code of Civil Procedure: Court by which decree may be executed

Legal Commentary & Landmark Judgments: Section 38