Section 46 of the Code of Civil Procedure, 1908 deals with precepts, a temporary mechanism by which the court that passed a decree can ask another competent court to attach property of the judgment-debtor.
Section at a Glance
| Particular | Details |
|---|---|
| Section | Section 46 CPC |
| Subject | Precepts |
| Nature | Procedural |
| Main purpose | Temporary attachment of judgment-debtor’s property |
| Related provisions | Sections 38, 39 and Order XXI |
Meaning of Precept
A precept is a direction issued by the court which passed a decree to another competent court requiring it to attach specified property belonging to the judgment-debtor.
It is primarily used to secure the property while the decree-holder takes further steps for execution.
Purpose of Section 46
The provision helps prevent the judgment-debtor from disposing of or otherwise dealing with property before the decree-holder can obtain effective execution.
A precept therefore provides a temporary protective measure in execution proceedings.
How a Precept Works
The process can be understood as follows:
- A decree has been passed.
- The decree-holder seeks protection of the judgment-debtor’s property.
- The court which passed the decree issues a precept.
- The precept is sent to another competent court.
- That court attaches the specified property according to the direction.
Duration of Attachment
An attachment made pursuant to a precept does not continue indefinitely.
Under Section 46, the attachment remains in force for two months, unless:
- The court which passed the decree extends the period; or
- The decree is transferred to the court that made the attachment and the decree-holder takes the necessary steps for execution.
This prevents a precept from becoming a substitute for ordinary execution proceedings.
Precept Is Not the Same as Transfer of Decree
A precept does not itself transfer the decree to another court.
Its immediate purpose is to secure the judgment-debtor’s property through attachment.
A separate transfer of the decree may subsequently be required under Section 39 CPC if execution is to continue through another court.
Practical Example
A obtains a decree against B in Chennai. B owns valuable property within the jurisdiction of another court and there is a risk that B may dispose of it.
A may request the court that passed the decree to issue a precept to the other court directing attachment of B’s property.
The attachment temporarily protects the property while further execution steps are taken.
Section 46 and Section 39
| Section 46 | Section 39 |
|---|---|
| Provides for a precept and temporary attachment | Provides for transfer of a decree |
| Primarily protective | Enables continued execution by another court |
| Attachment is time-limited | Transfer permits the receiving court to execute the decree |
Practical Importance in Civil Litigation
A precept can be particularly useful where there is an immediate concern that the judgment-debtor may remove, transfer or otherwise deal with property before formal execution proceedings are transferred.
The decree-holder should, however, proceed with the necessary execution steps within the statutory period.
Important Questions to Prepare
- What is a precept under Section 46 CPC?
- What is the object of issuing a precept?
- How long does an attachment under a precept remain effective?
- Distinguish a precept from transfer of a decree under Section 39.
- Can a precept itself amount to execution of the decree?
Key Legal Principles
- A precept is a direction for attachment of the judgment-debtor’s property.
- It is issued by the court which passed the decree to another competent court.
- The attachment under a precept is temporary.
- A precept does not itself transfer the decree for execution.
- Further execution proceedings may require transfer of the decree under Section 39.
ALSO READ: Section 45 – Execution of Decrees Outside India
Key Takeaways
| Concept | Principle |
|---|---|
| Section | Section 46 CPC |
| Subject | Precepts |
| Purpose | Temporary attachment of property |
| Issued by | Court which passed the decree |
| Effect | Attachment of specified property |
| Duration | Two months, subject to statutory extension |
| Related provision | Section 39 |
