Section 23 CPC — Court to Which Application for Transfer Lies

Section 23 of the Code of Civil Procedure, 1908 determines the court before which an application for transfer of a suit or proceeding should be made. It operates mainly in connection with Section 22 and identifies the appropriate forum depending upon the courts in which the suit or proceeding is pending.

The provision is procedural in nature. It does not itself create jurisdiction to try the suit. Instead, it determines which court is competent to consider an application seeking transfer.

Section at a Glance

Particular	Details
Section	Section 23 CPC
Subject	Court to which application for transfer lies
Nature	Procedural
Main purpose	Identifies the proper court for transfer applications
Related provisions	Sections 22 and 24 CPC

Statutory Provision

Section 23 broadly provides three situations depending upon the relationship between the courts concerned.

1. Where All Courts Are Subordinate to the Same Appellate Court

If the courts having jurisdiction are subordinate to the same appellate court, the application for transfer is made to that appellate court.

2. Where the Courts Are Subordinate to Different Appellate Courts but the Same High Court

Where the courts concerned are subordinate to different appellate courts, but those appellate courts are subordinate to the same High Court, the application is made to that High Court.

3. Where the Courts Are Subordinate to Different High Courts

Where the courts having jurisdiction are subordinate to different High Courts, the application is made to the High Court within whose jurisdiction the court in which the suit is pending is situated.

Thus, Section 23 establishes a hierarchy for determining the proper forum for a transfer application.

Meaning of Section 23 CPC

Section 23 answers a simple procedural question:

Where should an application for transfer be filed?

Section 22 deals with the circumstances in which a defendant may seek transfer of a suit that could have been instituted in more than one competent court. Section 23 then identifies the appropriate court before which that transfer application should be presented.

Therefore, Sections 22 and 23 should ordinarily be studied together.

Purpose of Section 23

The purpose of Section 23 is to provide a clear forum for transfer applications and prevent uncertainty about which court should decide the request.

It creates a hierarchical structure based upon the relationship between the courts from which and to which transfer is sought.

The provision also ensures that a transfer application is made before an appropriate superior court rather than before either of the trial courts merely as a matter of convenience.

Essential Requirements

1. There Must Be a Transfer Application

Section 23 operates when a party seeks transfer of a suit or proceeding under the relevant CPC provisions.

2. The Relationship Between the Courts Must Be Examined

The proper forum depends upon whether the courts are:

• Subordinate to the same appellate court;
• Subordinate to different appellate courts under the same High Court; or
• Subordinate to different High Courts.

3. The Appropriate Superior Court Must Be Approached

The application must be filed before the court identified by Section 23.

Section 23 and Section 22

The two provisions have different functions.

Basis	Section 22	Section 23
Main subject	Right to seek transfer in specified circumstances	Court before which transfer application lies
Focus	When transfer may be sought	Where transfer application should be filed
Applicant	Defendant	Party seeking transfer under the relevant provision
Function	Provides transfer mechanism	Determines appropriate forum

A simple way to remember the distinction is:

Section 22 = transfer may be sought

Section 23 = where the application is to be made

Section 23 and Section 24

Section 24 gives the High Court and District Court broader powers to transfer or withdraw suits, appeals and other proceedings.

Section 23, on the other hand, primarily identifies the appropriate court for applications made under the transfer framework to which it applies.

Therefore, Section 23 should not be treated as an independent source of general transfer power.

Practical Example

A suit can legally be instituted in Court A and Court B. Both courts are subordinate to the same District Court.

If the defendant seeks transfer under Section 22, the application would lie before the common appellate court identified under Section 23.

If the two courts are subordinate to different appellate courts but those appellate courts fall under the same High Court, the application lies before that High Court.

Important Case Law

Indian Overseas Bank v. Chemical Construction Co., (1979) 4 SCC 358

Principle: The Supreme Court considered the framework governing transfer of proceedings and the respective powers of courts under the CPC.

Relevance: The decision is useful for understanding the statutory scheme relating to transfer and the distinction between the powers under different CPC provisions.

Common Confusion

Section 23 Does Not Decide Whether Transfer Should Be Granted

Section 23 primarily determines where the application lies.

Whether the transfer should actually be granted depends upon the applicable transfer provision and the circumstances of the case.

Section 23 Does Not Confer Trial Jurisdiction

The provision does not make a court competent to hear the original suit. It identifies the appropriate court for considering the transfer application.

Practical Importance in Civil Litigation

An advocate seeking transfer must first determine:

1. Which courts have jurisdiction over the suit;
2. The appellate relationship between those courts; and
3. The court before which the transfer application must be filed under Section 23.

Filing the application before the wrong forum can create unnecessary procedural complications.

Importance for Law Students and Judiciary Exams

What to Remember

• Section 23 determines the court to which a transfer application lies.
• It works closely with Section 22.
• If the courts are subordinate to the same appellate court, the application lies before that appellate court.
• If they are subordinate to different appellate courts under the same High Court, the application lies before that High Court.
• If they are subordinate to different High Courts, the application lies before the High Court within whose jurisdiction the court where the suit is pending is situated.
• Section 23 does not itself decide whether transfer should be granted.

Important Questions to Prepare

1. What is the object of Section 23 CPC?
2. Explain the three situations contemplated by Section 23.
3. Distinguish Sections 22 and 23 CPC.
4. Does Section 23 confer jurisdiction to try the original suit?
5. Explain the relationship between Sections 22, 23 and 24 CPC.

Key Legal Principles

1. Section 23 identifies the forum for transfer applications.
2. The appropriate forum depends upon the appellate hierarchy of the courts concerned.
3. Section 23 must be read with Section 22.
4. Section 23 does not itself grant the transfer.
5. Section 23 does not create jurisdiction over the original dispute.

ALSO READ: Section 22 – Transfer of Suits Which May Be Instituted in More Than One Court

Key Takeaways

Concept	Principle
Section	Section 23 CPC
Core subject	Court to which transfer application lies
Main function	Identifies the appropriate superior court
Connection	Closely linked with Section 22
Same appellate court	Application lies before that appellate court
Different appellate courts, same High Court	Application lies before the High Court
Different High Courts	Application lies before the relevant High Court specified by Section 23
Important distinction	Section 23 determines forum; it does not itself grant transfer

Section 23 CPC determines the proper court for filing an application for transfer. Its key function is to identify the appropriate superior court based on the appellate hierarchy of the courts concerned.