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Report No. 27

Section 39

1. At present, there is a conflict of decisions on the question whether (i) the transferee court must be a court of competent pecuniary jurisdiction; and (ii) if so, whether the competence should be judged with reference to the decree or the suit.

2. One view is, that provisions of this section are controlled by section 6 and a decree cannot be transferred under sub-section (1) for execution to another court if the amount or value of the decree exceeds its pecuniary jurisdiction. See the under-mentioned cases.1

The contrary view was taken in a Madras case2 where the decree was sent on the applications of the decree-holder. Section 39(1), it was said, does not contain any such limitation, though section 39 (2) does.

3. It has also been held, that the value of the suit in which the decree was passed must be within the pecuniary limits of the jurisdiction of the court to which the decree is proposed to be sent. See the under-mentioned cases.3

For a different view, to the effect that the decretal amount determines pecuniary jurisdiction, see the under-mentioned cases.4

4. See also the discussion about the section in a recent Supreme Court case5.

5. It is considered, that the position should be made clear and that the transferee court must have pecuniary competence to deal with the suit in which the decree was passed; amount of the decree is immaterial, aspecuniary jurisdiction of a court is ordinarily judged with reference to the nature of the claim in the suit, and not the nature of the relief decreed. Hence the amendment.

1. Shamsunder v. Anath Bandhu, 1910 ILR 37 Cal 574; Durga Charan v. Uma Tara, 1889 ILR 16 Cal 465 (467) (DB); Firm Ganesh Das v. Amuluk Chand, AIR 1940 Cal 161 (DB).

2. Abdulla Saheb v. Ahmed Hussain Saheb, AIR 1914 Mad 206 (DB). (Sadasiva Aiyar and Spencer JJ.).

3. Anchahi v. (Firm) Brij Mohan Lal, AIR 1936 Pat 177 (178) (DB). Matrumal v. Madanlal AIR 1957 Ori 177; see also AIR 1922 Pat 189; Gokul Kristo v. Aukhil Chander, ILR 16 Cal 457 (461 to 463) (DB); Rustomjee v. Mahadev, AIR 1940 Born 277.

4. Shanti Lal v. fanuii Kuer, ILR 1940 All 318: 1940 All 331 (334) (DB) which discusses the case law.

5. Ramma v. Nallaparaju, AIR 1956 SC 87 (Venkatarama Ayyar J.).

Code of Civil Procedure, 1908 Back

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