Section 38 CPC — Court by Which Decree May Be Executed

Section 38 of the Code of Civil Procedure, 1908 specifies the courts by which a decree may be executed. It provides that a decree may be executed either by the court which passed the decree or by the court to which it is sent for execution.

Section at a Glance

Particular	Details
Section	Section 38 CPC
Subject	Court by which decree may be executed
Nature	Procedural
Main purpose	Determines the court competent to execute a decree
Related provisions	Sections 37, 39 and Order XXI

Meaning of Section 38 CPC

Section 38 recognises two courts that may execute a decree:

1. The court which passed the decree, or
2. The court to which the decree is sent for execution.

This allows a decree to be enforced even when execution needs to take place outside the territorial jurisdiction of the original court.

Court Which Passed the Decree

The original court may execute its decree in accordance with the CPC.

The expression “court which passed the decree” must be understood with Section 37, which explains which court is treated as having passed a decree for execution purposes.

Court to Which the Decree Is Sent

Where execution is required in another jurisdiction, the decree may be transferred to a competent court under Section 39 CPC.

That court can then execute the decree according to the applicable provisions.

Why Section 38 Is Important

A decree would have limited practical value if it could be enforced only where the original suit was decided.

For example, the judgment-debtor may reside in another State or own property in another jurisdiction. Section 38, read with Section 39, facilitates execution in such circumstances.

Section 38 and Section 39

Section 38	Section 39
Identifies courts that may execute a decree	Provides for transfer of decree for execution
Original court or transferee court	Specifies circumstances and procedure for transfer

Section 38 therefore provides the basic rule, while Section 39 provides the mechanism for execution by another court.

Practical Example

A obtains a money decree against B from a court in Delhi. B has no attachable property in Delhi but owns substantial property in Jaipur.

The decree may be transferred to the competent court in Jaipur for execution in accordance with Section 39. That court can then execute the decree under Section 38.

Important Case Law

Mohit Bhargava v. Bharat Bhushan Bhargava, (2007) 4 SCC 795

Principle: The Supreme Court considered the statutory scheme governing execution and transfer of decrees and emphasised that execution must take place within the jurisdiction recognised by the CPC.

Relevance: The case helps explain the relationship between Sections 38 and 39 concerning execution jurisdiction.

Common Confusion

Passing a Decree and Executing a Decree Are Different

The court that adjudicated the dispute may not ultimately conduct the execution proceedings.

A decree can be transferred to another competent court where execution is required.

Section 38 Does Not Itself Transfer a Decree

Section 38 identifies the courts by which a decree may be executed. The actual transfer mechanism is dealt with primarily under Section 39.

Practical Importance in Civil Litigation

A decree-holder should determine where the judgment-debtor has:

• Property;
• Assets;
• Business interests; or
• Other interests capable of being subjected to execution.

If execution is required outside the original court’s jurisdiction, the decree-holder may need to seek transfer under Section 39.

Importance for Law Students and Judiciary Exams

What to Remember

• A decree may be executed by the court which passed it.
• It may also be executed by the court to which it is sent for execution.
• Section 37 explains the expression “court which passed a decree”.
• Section 39 deals with transfer of decrees.
• Order XXI contains the detailed execution procedure.

Important Questions to Prepare

1. Explain Section 38 CPC.
2. Which courts can execute a decree?
3. Distinguish Sections 38 and 39 CPC.Section 37 – Court Which Passed a Decree
4. Can a decree be executed by a court other than the court which passed it?
5. Explain the relationship between Sections 37, 38 and 39.

Key Legal Principles

1. A decree may be executed by the court which passed it.
2. A decree may also be executed by a court to which it is transferred for execution.
3. Section 39 provides the mechanism for transfer.
4. Order XXI governs the detailed execution procedure.

ALSO READ: Section 37 – Court Which Passed a Decree

Key Takeaways

Concept	Principle
Section	Section 38 CPC
Subject	Court competent to execute decree
First court	Court which passed the decree
Second court	Court to which decree is sent for execution
Transfer	Section 39
Detailed procedure	Order XXI