Code of Civil Procedure, 1908 | Execution of decrees

Section 46 CPC - Precepts: Meaning, Attachment and Time Limit

Section 46 of the Code of Civil Procedure, 1908 (CPC) allows the court that passed a decree to request another competent court to attach specified property of the judgment-debtor. This provisional safeguard helps preserve property while the decree-holder pursues execution.

Section 46 CPC - Statutory 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.

Source: India Code - Code of Civil Procedure, 1908 (official statutory PDF). Check applicable amendments and local court rules when filing.

What is a precept under Section 46 CPC?

A precept is a direction from the court that passed a decree to another court competent to execute it, requesting attachment of identified property belonging to the judgment-debtor. Its principal purpose is protective: it helps prevent disposal of property before ordinary execution proceedings can be pursued in the other court.

A precept is not itself an order for sale of the attached property. Sale or further execution requires compliance with the applicable CPC provisions, including transfer of the decree where necessary.

Important legal terms

Decree (Section 2(2) CPC): The formal expression of an adjudication conclusively determining the rights of parties concerning all or any matters in controversy in a suit, subject to statutory inclusions and exclusions.
Decree-holder (Section 2(3) CPC): A person in whose favour a decree has been passed or an order capable of execution has been made.
Judgment-debtor (Section 2(10) CPC): A person against whom a decree has been passed or an order capable of execution has been made.
Attachment: A court-ordered legal restraint on dealing with identified property, implemented according to the rules applicable to the type of property.

Conditions for issuing a precept

There must be a decree capable of execution.
The decree-holder must apply to the court which passed the decree.
The requested attachment must identify property belonging to the judgment-debtor.
The receiving court must be competent to execute the decree.
The issuing court must consider it appropriate to issue the precept; the power is discretionary.

How long does an attachment under a precept last?

The normal maximum period is two months. Under the proviso to Section 46(2), attachment may continue beyond that period only where:

the court which passed the decree orders an extension; or
before the attachment ends, the decree is transferred to the court that attached the property and the decree-holder applies for an order for sale of that property.

The statute does not prescribe an automatic indefinite extension. Parties should obtain the necessary orders or pursue the decree transfer and sale application within the relevant period.

Practical procedure for a decree-holder

Identify property: Collect reliable details of the judgment-debtor's property within another competent court's jurisdiction.
Apply to the decree-passing court: Request a precept under Section 46, specifying the property and why immediate attachment is sought.
Issuance and transmission: If satisfied, the court may issue the precept to the competent court.
Attachment: The receiving court proceeds according to the applicable execution and attachment rules in Order XXI CPC.
Follow-up: Seek timely extension or transfer of the decree under Section 39 and pursue further execution, including a sale application where legally appropriate.

Example: A money decree is passed in City A, but the judgment-debtor owns attachable property in City B. The decree-holder may seek a Section 46 precept from the decree-passing court to the competent court in City B. To pursue sale, the decree-holder must then take the required steps for execution rather than relying on the precept alone.

Section 39 CPC governs transfer of decrees for execution. Section 42 CPC addresses the powers of the court executing a transferred decree. Section 47 CPC concerns questions relating to execution, discharge or satisfaction of a decree. Order XXI CPC provides the detailed rules for execution and attachment.

Frequently asked questions

Is a precept the same as transfer of a decree?

No. A precept is primarily for temporary attachment of specified property. Transfer of a decree permits the receiving court to undertake execution subject to the CPC.

Can a precept attach any property?

It must identify property of the judgment-debtor, and the receiving court must be competent to execute the decree. Statutory exemptions from attachment and other applicable safeguards still matter.

Can the receiving court sell property merely because it received a precept?

No. A precept authorizes attachment under Section 46. Sale requires the proper execution process, including the statutory conditions concerning transfer of the decree and an application for sale.

Does attachment automatically end after two months?

Section 46(2) limits its continuation to two months unless the issuing court extends it or the statutory decree-transfer and sale-application conditions are met before the attachment ends.

This article is general legal information. Case-specific execution steps depend on the decree, court jurisdiction, applicable procedural rules and orders.