Code of Civil Procedure, 1908 (CPC)
Precept under Section 46 CPC: Attachment Before Transfer of the Decree
Transferring a decree for execution takes time, and a judgment-debtor who learns of it can dispose of his property in the interval. Section 46 of the Code of Civil Procedure, 1908 meets that difficulty with a short and precise remedy: the court that passed the decree may ask another court to attach property lying within that court's limits, holding it until the decree itself arrives for execution. These notes cover the meaning of a precept, its object, the conditions, its two-month life, and the distinction between a precept and a transfer of decree.
Precept in the scheme of Sections 39 to 46
1. Section 46: The Provision
§ Section 46, CPC 1908 (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 such 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. |
The meaning of a precept
A precept is an order, in the nature of a command, by which the court that passed a decree directs another competent court to attach specified property of the judgment-debtor lying within that other court's jurisdiction. It is not an execution: no sale follows, no money is realised, and nothing is delivered. Its sole function is preservation, holding the property so that it is available when execution proper begins.
2. The Object of a Precept
§ Why the section exists By Section 39(4), the court that passed the decree cannot execute it against property outside its own limits. The decree-holder's remedy is a transfer under Section 39, but the application, the order and the transmission of the decree all take time. In that interval a judgment-debtor who has notice of the proceedings may sell, mortgage or otherwise dispose of the very property the decree-holder intends to reach. If he does so before any attachment, the transfer is effective and the decree-holder is left pursuing an empty estate. A precept closes the gap. The attachment is made at once by the court where the property lies, so that any subsequent private transfer is void as against claims enforceable under the attachment by force of Section 64, while the transfer of the decree proceeds in the ordinary way. |
3. Conditions and Procedure
i. An application by the decree-holder. A precept issues only on the decree-holder's application; the court does not issue it of its own motion.
ii. By the court which passed the decree. The power belongs to that court, the expression bearing the extended meaning given by Section 37.
iii. To a competent court. The precept goes to a court which would be competent to execute the decree, so the transferee's competence is tested as it would be under Section 39.
iv. Property specified. The precept must specify the property to be attached. It is not a roving commission to search for assets; the decree-holder must identify what he wants attached.
v. Attachment in the ordinary manner. The receiving court attaches the property in the manner prescribed for attachment in execution, so the rules in Order XXI Rules 41 to 57 apply according to the nature of the property.
vi. Discretion. The words whenever it thinks fit make the issue of a precept discretionary; the court weighs the risk of disposal against the hardship of an attachment before execution has begun.
4. The Two-Month Limit
§ The proviso to Section 46(2) No attachment under a precept shall continue for more than two months, unless one of two things happens: Extension. The period is extended by an order of the court which passed the decree. The power to extend lies with the originating court, not with the court that made the attachment. Transfer and application for sale. Before the attachment determines, the decree has been transferred to the court which made the attachment and the decree-holder has applied for an order for the sale of the property. The attachment then continues, no longer as a precept attachment but as part of the execution itself. The limit exists because a precept attachment is made without any execution pending in the attaching court, and property should not be frozen indefinitely on that footing. Two months is the time the Code considers sufficient to bring the decree itself to the same court. |
5. Precept Compared with Transfer of a Decree
Basis | Precept, Section 46 | Transfer of decree, Section 39 |
|---|---|---|
What is sent | An order to attach specified property | The decree itself, for execution |
What the receiving court does | Attaches the property and nothing more | Executes the decree by any mode available under Section 51 |
Purpose | Preservation: to prevent disposal of property before execution begins | Realisation: to obtain the fruits of the decree |
Duration | The attachment lapses after two months unless extended or continued in execution | Continues until the decree is executed or execution fails |
Sale | No sale may take place under a precept alone | Sale follows attachment in the ordinary course |
Who may apply | The decree-holder alone | The decree-holder, or the court suo motu to a subordinate court under Section 39(2) |
Effect on transfers | Section 64 applies from the attachment, so a private transfer contrary to it is void as against claims under the attachment | The same effect follows from the attachment made in execution |
§ The relationship in one sentence A transfer moves the whole execution to another court; a precept only freezes the property until the transfer catches up. A decree-holder who fears disposal applies for a precept and for a transfer, the first protecting the asset while the second is processed. |
6. Landmark Points
- Section 46(1). A precept issues on the decree-holder's application, from the court which passed the decree, to a court competent to execute it, to attach specified property of the judgment-debtor.
- Section 46(2) and its proviso. The attachment is made in the manner prescribed for attachment in execution, and lapses after two months unless extended by the court which passed the decree, or unless the decree is transferred and a sale applied for before the attachment determines.
- Section 39(4). The provision that makes a precept necessary: the court which passed the decree cannot itself reach property outside its limits.
- Section 64. A private transfer of attached property contrary to the attachment is void as against all claims enforceable under the attachment, which is what gives a precept attachment its protective value.
7. Frequently Asked Questions
What is a precept under Section 46 CPC?
An order by which the court that passed a decree directs another competent court to attach specified property of the judgment-debtor lying within that court's jurisdiction. It is issued on the decree-holder's application and effects an attachment only; it is not itself an execution.
What is the object of issuing a precept?
To prevent the judgment-debtor from disposing of property in the interval between the decree-holder's decision to execute and the actual transfer of the decree. Since the court that passed the decree cannot reach property outside its limits, a precept freezes the asset while the transfer is processed.
How long does an attachment under a precept last?
Not more than two months, unless the period is extended by an order of the court which passed the decree, or unless before the attachment determines the decree has been transferred to the attaching court and the decree-holder has applied for an order for the sale of the property.
Can property attached under a precept be sold?
Not under the precept alone. A precept authorises attachment only. Sale can follow only once the decree itself has been transferred to that court and execution proceeds in the ordinary way.
Who can extend the period of a precept attachment?
Only the court which passed the decree. The proviso to Section 46(2) vests the power of extension in that court and not in the court which made the attachment.
What is the difference between a precept and a transfer of decree?
A precept sends an order to attach specified property and serves only to preserve it, lapsing in two months. A transfer under Section 39 sends the decree itself, and the transferee court executes it by any mode available, including sale, until the decree is satisfied.
8. Related Topics in This CPC Series
- Transfer of a Decree for Execution: Sections 39 to 45
- Execution: Meaning, Scope and Sections 37 and 38
- Execution of Decrees: Sections 36 to 74 and Order XXI
- Questions Determined by the Executing Court under Section 47