September 30, 2022

What is precept under CPC?

Section 46 empowers the Court to issue a precept to any other Court which would be competent to execute the decree to attach any property of the judgment-debtor specified in the precept and lying within, the Jurisdiction of the Court.

Meaning and Definition of Precept

Precept is an order or direction given by the court, which passed the decree, to any other Court which would be competent to execute a decree to attach any property belonging to the judgment-debtor.

Concise Oxford Dictionary defines precept as “a command”, “an order”, “a writ” or “a warrant“.

Naturally, the Court, whose duty ordinarily is to execute a decree, is the Court which passed that decree. There may be circumstances, however, in which a Court finds it difficult to execute its decree. For instance, the judgment-debtor may not have enough property within its jurisdiction to satisfy the decree, or the judgment-debtor may be outside the jurisdiction of the Court so that a warrant against his person cannot be executed against him.

Section 38 of the Code, therefore, provides that a decree may be executed “either by the Court which passed it or by the Court to which it is sent for execution”.

Historical Perspective

The system of precepts was introduced by the Civil Procedure Code of 1908. Previous to this, the Judicial Committee in ‘Saboda prosad mullick v. luchmeeput singh deogur’, 14 moo Ind app 529, had supported an order of a decreeing Court in East Burdwan sending the decree for execution to three different Courts, and directing two of them to attach the property of the judgment-debtor in their respective jurisdictions and await the result of execution in the third Court.[1]

Precepts under Section 46

Section 46 empowers the Court to issue a precept to any other Court which would be competent to execute the decree to attach any property of the judgment-debtor specified in the precept and lying within, the Jurisdiction of the Court.

The attachment made by that Court in pursuance of the precept will continue for two months unless that period is extended by the court issuing the precept or unless before the expiry of that period the decree has been transferred from the original court to the executing court and the decree-holder has made an application for an order for the sale of the property.

After receiving the precept, Court shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.

Object

The object of the provision is to be prevent judgement debtor from disposing of his property before the decree-holder can get the decree transferred and take steps in the proper Court for execution against the property.

A precept under Section 46, Civil P. C. becomes necessary when the judgment debtor’s property is situated within the limits ot another court and when it is necessary to prevent the judgment-debtor from alienating or otherwise dealing with it to the detriment of the decree-holder till proper proceedings for the sale of the property in pursuance of an application can be taken.

Does precept transfer the decree to another court?

The attachment only keeps the property of the judgment-debtor in medio until the decree can be executed. That a precept issued under Section 46, Civil P. C. has not the effect of transferring the decree to the court to which the precept is issued becomes obvious from the proviso to Section 46 itself which says that no attachment under a precept shall continue for more than two months unless the period is extended by the order of the court which passed the decree or unless the decree is transferred for execution to the court receiving the precept.[2]

Application for precept

After there is an attachment pursuant to a precept under Section 46, C. P. C., further steps have to be taken before the decree can be executed.

First, there must be an application under Section 39 of the Code to the Court, which passed the decree, for transmission of the decree to the Court which is to execute the decree.

Second, there must be an application for execution of the decree to the Court to which the decree has been transferred.

It is thus clear that after an attachment under a precept there must be an application for execution in the proper form and it is only upon such application that execution can issue. The order issuing a precept is, therefore, not an order directing execution and the attachment under a precept is not an attachment in execution proceedings.[3]

Thus, An order of precept under Section 46 is one which tends to facilitate the execution of the decree and not a step in execution proceedings.[4]


[1] Radheshyam and Ors. vs Devendra AIR 1952 Pat 213

[2] Champalal Hirachand And Anr. vs Mohanlal Narayandas And Ors. AIR 1959 MP 397

[3] Rai Kissenji v. Sri Kissen’, ILR (1939) 2 Cal 370

[4] Rampalli Ramachandrudu vs Sait Bakraj Gulabchand Firm AIR 1952 Mad 826, (1952) 1 MLJ 398