Precept under Section 46 of the CPC is a written order issued by a court to another court, directing the attachment of a judgment debtor’s property to execute a decree.
Precepts are important because they provide a procedure for a decree-holder to secure a judgment debtor’s assets, especially when those assets are located outside the jurisdiction of the court that passed the original decree. This ensures that decrees can be effectively executed across different jurisdictions.
Section 46 of the Code of Civil Procedure (CPC), 1908 provides the legal basis for issuing precepts, outlining the conditions and procedures for their use.
Precept under Section 46 of the CPC: Provision
(1) Upon the application of the decree-holder the Court which passed the decree may. whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree
Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.
Precept Under Section 46 CPC: explain
Definition: A precept is a written order, issued by a court that has passed a decree to another court that is competent to execute the decree. Its purpose is to enable the decree-holder to obtain an interim attachment of the judgment debtor’s property that falls outside the jurisdiction of the court that passed the decree. The CPC does not define “execution”; however, execution refers to the act of carrying out a court order or verdict.
Objective: The primary objective of a precept is to prevent a judgment debtor from disposing of their property in order to avoid satisfying a decree. It allows for the temporary attachment of property to secure it until the decree can be fully executed.
Applicability: Precepts are issued when a decree-holder needs to attach a judgment debtor’s property that is located outside the local limits of the court which passed the decree
Example: If a court in Delhi passes a decree against a judgment debtor, but the debtor owns property in Mumbai, the court in Delhi can issue a precept to the court in Mumbai to attach that property..
Ingredients of Section 46 CPC
Conditions for Issuing a Precept:
The decree-holder must apply to the court that passed the decree.
The court must deem it fit to issue the precept.
The precept can only be sent to a court that is competent to execute the decree. Competency includes subject matter and pecuniary jurisdiction.
Who Can Issue a Precept: The court that originally passed the decree is the one that can issue a precept.
Recipient of the Precept: The court which receives the precept must have jurisdiction to execute the decree.
Period for Execution: An attachment under a precept cannot continue for more than two months unless that period is extended by an order from the court that issued the decree. The attachment can also continue if, within two months, the decree is transferred to the court that made the attachment and the decree holder has applied for the sale of the property.
Procedure for Issuing and Executing a Precept
Steps for the Decree-Holder to Request a Precept:
The decree-holder should apply to the court that passed the decree in order to issue a precept.
The application must be filed along with the certified copy of the decree.
An affidavit stating that the decree has not been fully executed must also be included.
Actions by the Executing Court to Issue the Precept:
The court examines the decree-holder’s application and the accompanying documents.
If the court is satisfied that the decree is valid and enforceable, and that the decree-holder has taken necessary steps to execute the decree within its jurisdiction, it will issue a precept to the court of competent jurisdiction where the property is located.
The precept will specify the property to be attached and the actions to be taken.
Duties of the Receiving Court:
Upon receiving the precept, the court must attach the property as it would for the execution of its own decree.
The court cannot question the validity of the precept.
The attachment becomes effective from the date the precept is received by the court. However, the court receiving the precept has the authority to pause its execution if the judgment debtor either deposits the decretal amount or furnishes adequate security.
Steps for Issuing a Precept
1: Application by decree-holder
2: Court reviews application
3: Court issues a precept to the competent court
4: Receiving court attaches the property
Temporary Attachment Under Precept
The temporary attachment under Section 46 serves to prevent the judgment debtor from transferring or dealing with the property, securing the asset for future sale to satisfy the decree.
Conditions and Limitations:
The attachment is temporary.
It is restricted to a maximum period of two months, unless the period is extended by the issuing court or the decree is transferred to the court that attached the property.
Permanent attachment cannot be made under section 46.
Procedure for Lifting the Attachment: The attachment will be lifted after two months, unless the period is extended or the decree is transferred to the court that attached the property. If the decree holder wants to proceed with the sale of the attached property, the decree must be transferred to the court that made the attachment and the decree holder can apply for the order to sell the property.
Judicial Interpretation and Case Laws
M.L. Kapoor & Sons v. Union of India (1969): The Supreme Court of India held that an executing court has the same powers in executing the decree as if it had been passed by itself.
Champalal Heerachand and another vs. Mohanlal Narayandass and others: This case clarifies that when an application for a precept is filed, it should not be numbered as an Execution Petition (E.P.) but as an Execution Application (E.A.).
Shaik Fazal ELLAHI vs. Sri Krishna Makkal: This case provides further clarification about how a precept should be numbered when filed.
These cases have clarified the scope of Section 46 and provided guidance to executing courts and parties in execution proceedings.
Comparison with Related Provisions
Section 46 vs. Section 39 CPC:
Section 46 allows for a temporary attachment of property through a precept, without transferring the decree itself.
Section 39 provides for the transfer of a decree from one court to another for execution.
Section 46 is used for interim measures to prevent the disposal of property, while Section 39 is used for the full transfer of execution jurisdiction.
Section 46 CPC vs. Order 21 (Execution of Decrees):
Section 46 provides the power for issuing a precept for attachment of property outside the jurisdiction of the court that passed the decree.
Order 21 of the CPC contains the procedures for all modes of execution of decrees, including attachment. Order 21 provides detailed provisions for making an application for execution and how they are to be dealt with. The rules of Order 21 provide the framework to implement the power given by section 46.
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Practical Implications of Precept under Section 46 of the CPC
Common Scenarios: Precepts are commonly used when a judgment debtor’s property is located in a different jurisdiction from the court that passed the decree. For example, if a court in State A passes a decree, and the judgment debtor’s property is in State B, the court in State A can issue a precept to the competent court in State B to attach the property.
Challenges Faced by Decree-Holders and Receiving Courts:
Decree-Holders: Decree-holders may face challenges in ensuring timely execution of precepts, given the two-month limitation and the need for further action to extend attachments or proceed with a sale.
Receiving Courts: Receiving courts must act promptly upon receiving a precept, even though they cannot question the validity of the order. They need to follow the correct attachment procedures.
Legal Remedies for Non-Compliance or Improper Issuance of Precepts:
If a precept is improperly issued or if the receiving court does not comply, the decree-holder can seek remedy through the court which issued the precept and in some cases, by approaching higher courts with appropriate applications.
In conclusion, a precept under Section 46 of the CPC is a valuable tool for decree-holders to secure the assets of a judgment debtor, especially when those assets are located outside the jurisdiction of the court that passed the decree. It provides an interim measure to prevent property alienation, ensuring the effective execution of court decrees throughout India.
Comparison Between Section 46 and Section 39 CPC
| Aspect | Section 46 | Section 39 |
| Purpose | Temporary attachment through precept | Full transfer of execution jurisdiction |
| Nature | Interim measure | Comprehensive execution process |
| Jurisdiction | Court that passed the decree + competent receiving court | Executing court as per transfer of decree |
| Time Limitation | 2 months (extendable by issuing court) | No such limitation |
FAQs on Precept under Section 46 of the CPC
Q1: What is meant by a precept in the Civil Procedure Code (CPC)?
A precept is a formal order issued by one court to another, directing the latter to attach a judgment debtor’s property within its jurisdiction to secure a decree. This temporary measure ensures the property remains available for execution.
Q2: What is Section 46 of the CPC?
Section 46 of the Civil Procedure Code, 1908, empowers a court that has passed a decree to issue a precept to another court, requesting the attachment of specific property belonging to the judgment debtor. The attachment remains in effect for two months unless extended by the issuing court.
Q3: Can a precept be issued if the property is already attached by another court?
Yes, a precept can still be issued even if the property is under attachment by another court. However, the subsequent attachment does not take precedence over the earlier one. The courts will coordinate to avoid conflicting claims.
Q4: What happens if the judgment debtor provides security within the attachment period?
If the judgment debtor provides adequate security within the attachment period, the attachment may be lifted, and the property released. The court must be satisfied with the security’s sufficiency to secure the decree.
Q5: Can attached property be sold by the owner?
No, once attached, the owner cannot sell, transfer, or mortgage the property without court permission.
Q6: Can an interim attachment be challenged?
Yes, the defendant can file an objection and seek to lift the attachment by providing sufficient security or proving the attachment is unjustified.Q7: Is interim attachment available in criminal cases?
Yes, similar principles exist in criminal cases for securing assets related to economic offenses or fraudulent activities (e.g., Section 83 of CrPC).
Disclaimer:
The information provided in this article is for educational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy and reliability of the information, the author and legallyin.com make no representations or warranties of any kind, express or implied. Readers are advised to consult a qualified legal professional for specific legal advice or assistance related to their individual circumstances