Section 42 of The Code of Civil Procedure, 1908
Powers of Court in executing transferred decree.
1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons is disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had passed by itself. 2[(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely: --
- (a)power to send the decree for execution to another Court under section 39;
- (b)power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;
- (c)power to order attachment of a decree.
- (3)A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.
- (4)Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely:--
- (a)power to order execution at the instance of the transferee of the decree ;
- (b)in the case of a decree passed against a firm, power to grant leave to execute such decree against any person, other than such a person as is referred to in clause (b),or clause (c), of sub-rule (1) of rule 50 of Order XXI.] STATE AMENDMENT Uttar Pradesh Substitution of new section for section 42 of Act V of 1908.--For section 42 of the Code of Civil Procedure, 1908, as amended in its application to Uttar Pradesh (hereinafter referred to as the said Code) the following section shall be substituted and be deemed to have been substituted with affect from December 2, 1968, namely :-- "42. Power of court in executing transferred decree. (1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
- (2)Without prejudice to the generality of the provisions of sub- section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely --
- (a)power to send the decree for execution to another Court under section 39 ;
- (b)power to execute the decree against the legal representative of the deceased judgment-debtor under section 50 ;
- (c)power to order attachment of a decree;
- (d)power to decide any question relating to the bar of limitation to the executability of the decree ;
- (e)power to record payment or adjustment under rule 2 of Order XXI;
- (f)power to order stay of execution under rule 29 of Order XXI;
- (g)in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of rule 50 of Order XXI.
- (3)A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.
- (4)Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution, the power to order execution at the instance of the transferee of a decree." [Vide Uttar Pradesh Act 14 of 1970, s. 2]
Summary
- The court carrying out a transferred order has the same powers as if it had issued the order itself.
- It can punish anyone who tries to block or disobey the enforcement of the order.
- Its decisions during the enforcement process can be appealed just like decisions in its own cases.
- It has the power to send the order to another court for enforcement if needed.
- It can enforce the order against the legal representatives of a person who has died.
- However, it cannot allow the enforcement of an order at the request of someone who bought the decree from the original winner.
Practical examples
FAQ
1. What powers does an executing court have under Section 42 of The Code of Civil Procedure, 1908?
Under Section 42 of the 1908 Act, the executing court has the same powers to enforce the decree as if it had passed the decree itself.
2. Can a court punish obstruction under Section 42 of the civil procedure law?
Yes, Section 42 of the 1908 Code allows the court to punish persons disobeying or obstructing the execution in the same manner as its own decrees.
3. Does a court have the power to send a decree to a different court under Section 42 CPC?
Yes, Section 42 of the 1908 Act specifically includes the power to send the decree for execution to another court.
4. Are there limits on the powers of a court under Section 42 of the 1908 Act?
Yes, for example, Section 42 of the 1908 Code does not allow the court to order execution at the request of someone who has been transferred the decree.
Test yourself
1.Under Section 42 of The Code of Civil Procedure, 1908, how are the powers of the executing court described?
2.According to Section 42 of the 1908 Act, can the executing court go after a dead person's legal representative?
3.Which of these is a power the executing court does NOT have under Section 42 of the 1908 Act?
4.If a court issues an order during execution under Section 42 of the 1908 Act, where must it send a copy?