Section 36 and Section 37 of the Code of Civil Procedure, 1908
Sections 36 and 37 of the Code of Civil Procedure, 1908 deal with two foundational aspects of execution proceedings. Section 36 extends, where applicable, the Code provisions relating to execution of decrees to the execution of orders. Section 37 explains what is included in the expression "Court which passed a decree" for the purpose of execution.
- Section 36 applies execution provisions for decrees, so far as applicable, to orders.
- Section 37 identifies the court treated as the court which passed the decree for execution purposes.
- Where an appellate decree is executed, the court of first instance is included.
- Where territorial jurisdiction changes, the original court does not lose execution jurisdiction merely because of that transfer, while the other competent court may also execute the decree in the circumstances stated in the Explanation.
Section 36 CPC - Application to orders
The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).
Amendment note: Section 36 was substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1976, with effect from 1-2-1977.
Section 37 CPC - 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.
Amendment note: The Explanation was inserted by section 17 of the Code of Civil Procedure (Amendment) Act, 1976, with effect from 1-2-1977.
Meaning and practical effect of Sections 36 and 37 CPC
Section 36 prevents the execution machinery of the CPC from being confined only to decrees. When an order is capable of execution, the provisions governing execution of decrees, including provisions concerning payment, are applied so far as they are suitable to the order concerned.
Section 37 is relevant when identifying the proper executing court. It expands the meaning of the court which passed the decree in specified situations, including appellate decrees and cases where the original court has ceased to exist or has ceased to possess the required jurisdiction. Its Explanation also addresses changes in territorial jurisdiction.
Note: The CPC is subject to applicable amendments, including State amendments and High Court rules where relevant. For a court filing or litigation decision, the version and local amendments applicable to the concerned jurisdiction should also be checked.