Section 37 of The Code of Civil Procedure, 1908
Definition of Court which passed a decree.
The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,
- (a)where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
- (b)where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. 1[Explanation.-- The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]
Summary
- This section defines which court is considered the one that "passed the decree" for execution purposes.
- If a decree is modified or passed during an appeal, the court that first handled the suit is still considered the one that passed it.
- If the original court has been abolished, it refers to the court that would have the power to try that suit if it were started today.
- If the original court has lost the power to execute the decree, it also refers to the court that would now have the jurisdiction to try the suit.
- This definition applies whenever the phrase "Court which passed a decree" is used in the execution rules.
Practical examples
FAQ
1. If a High Court changes a judgment on appeal, which court is responsible for execution under The Code of Civil Procedure, 1908?
Under Section 37 of the Act, the court of first instance (the original court) is still considered the "Court which passed the decree" for execution purposes.
2. What happens if the court that gave the judgment no longer exists in The Code of Civil Procedure, 1908?
Section 37 provides that the court which would have jurisdiction to try the suit at the time of the application is deemed to be the court that passed the decree.
3. Does a court lose its status as the one that "passed the decree" if its geographical boundaries change under The Code of Civil Procedure, 1908?
Not necessarily, but Section 37 explains that if it has ceased to have jurisdiction to execute, the court that would currently have jurisdiction over the suit is the one used.
Test yourself
1.In relation to an appeal, how does Section 37 of The Code of Civil Procedure, 1908 define the court that passed the decree?
2.Under Section 37 of The Code of Civil Procedure, 1908, if the original court is abolished, which court takes its place for execution?
3.Why would a court that still exists be replaced under Section 37 of The Code of Civil Procedure, 1908?
4.Combined with Section 38 (which states a decree is executed by the court that passed it), how does Section 37 of The Code of Civil Procedure, 1908 assist a decree-holder?