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Execution of decree

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      Tina DU
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      CPC. Firstly,
      Order XXI Rule 50 reads:
      “50. Execution of decree against firm – (1) Where a decree
      has been passed against a firm, execution may be granted –
      (a) against any property of the partnership;
      (b) against any person who has appeared in his own name under
      rule 6 or rule 7 of Order XXX or who has admitted on the
      pleadings that he is, or who has been adjudged to be, a partner;
      (c) against any person who has been individually served as a
      partner with a summons and has failed to appear: Provided that
      nothing in this sub-rule shall be deemed to limit or otherwise
      affect the provisions of section 30 of the Indian Partnership Act,
      1932 (9 of 1932).
      (2) Where the decree-holder claims to be entitled to cause the
      decree to be executed against any person other than such a
      person as is referred to in sub-rule (1), clauses (b) and (c), as
      being a partner in the firm he may apply to the Court which
      passed the decree for leave, and where the liability is not disputed,
      such court may grant such leave, or, where such liability is
      disputed, may order that the liability of such person be tried and
      determined in any manner in which any issue in a suit may be
      tried and determined.
      (3) Where the liability of any person has been tried and determined
      under sub-rule (2) the order made thereon shall have the same
      force and be subject to the same conditions as to appeal or
      otherwise as if it were a decree.
      (4) Save as against any property of the partnership, a decree
      against a firm shall not release, render liable or otherwise affect
      any partner therein unless he has been served with a summons
      to appear and answer.
      (5) Nothing in this rule shall apply to a decree passed against a
      Hindu Undivided Family by virtue of the provision of rule 10 of
      Order XXX.”

      Section 37, CPC reads as follows:
      “37. 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.
      [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.]”

      Section 39, CPC provides that:
      “39. Transfer of Decree: (1) The Court which passed a decree
      may, on the application of the decree-holder, send it for execution
      to another Court of competent jurisdiction
      (a) if the person against whom the decree is passed actually and
      voluntarily resides or carries on business, or personally works
      for gain, within the local limits of the jurisdiction of such other
      Court, or
      (b) if such person has not property within the local limits of the
      jurisdiction of the Court which passed the decree sufficient to
      satisfy such decree and has property within the local limits of
      the jurisdiction of such other Court, or (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 the 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 42, CPC, which is relevant for purposes of this appeal,
      reads as follows:
      “42. Powers 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 subsection (1) the powers of the Court under that subsection 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
      Courts 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 subrule (1) of rule 50 of Order XXI.”

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