This article is written by Alan Mathews,IInd Year Law Student, Government Law College Ernakulam during his internship with Le Droit India.
Abstract
The concept of “precept” in the context of the Code of Civil Procedure (CPC) generally refers to a formal direction or order issued by a court. This order is used to guide or instruct individuals or entities on specific actions they are required to take in relation to a civil case. Precepts ensure that procedural and substantive justice is administered effectively, maintaining the orderly conduct of legal proceedings. They often pertain to procedural matters such as the service of documents, enforcement of judgments, or the execution of court orders. In essence, precepts function as essential tools for the court to manage cases and ensure compliance with legal mandates.
Keywords:order,actions, justice, conduct
Introduction
The word Precept means a command, an order, a writ, or a warranty[1].Precept is an order or direction given by the court which passed a decree to another court which would be competent to execute the decree to attach which belongs to the judgement debtor.
Section 46 of Code of Civil Procedure 1908 provides that the court which passed a decree may by an application of the decree holder issue a precept to the court within whose jurisdiction to the property of the judgement debtor is lying to attach any property specified in the precept.[2]
So according to Section 46,
(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.
Literal Background of Precepts
The conception of precepts in the legal system was introduced by the Civil Procedure Code of 1908. Prior to this, there was a significant case known as ‘ Saboda Prosad Mullick v. LuchmeeputSinghDeogur[3],https://www.casemine.com/judgement/in/5779f296e561096c9312f8be where the Judicial Committee supported an order from a dictating Court in East Burdwan. The order directed the decree to be transferred for prosecution to three different Courts. Two of these Courts were instructed to attach the property of the judgment- debtor within their separate authorities, while the third Court was to await the outgrowth of prosecution.
Procedure for Issuing Precepts
Procedure for Issuing Precepts Under Section 46 of CPC The procedure for issuing a precept under Section 46 of CPC is as follows:
1. The directive- proprietor must apply to the court that passed the directive for the allocation of a precept. The operation must be companioned by a certified dupe of the directive and a Affidavit from the directive- proprietor stating that the directive has not been completely executed.
2. The court that passed the directive will examine the operation and the escorting documents. If the court is gratified that the directive is valid and enforceable and that the directive- proprietor has taken all necessary way to apply the directive within its own governance, it’ll issue a precept to the court of competent governance in the area where the property to be executed is positioned.
3. The precept will define the property against which the action to be taken and the action also must he mention in precepts. 4. The executing court will admit the precept and will take all necessary way to apply the directive in agreement with the tours of the precept.
Main objective of Precept
The principal objective of attachment of any precept which enables the decree holder to obtain an interim attachment of property which in the hands of judgement -debtor which is in the jurisdiction of another court where it is apprehended that the decree holder may otherwise be deprived of the fruits of decree which is held in the case of Gurdiyal Singh v Khazan Chand.[4]
So a precept helps to prevent the elimination of property of the judgement -debtor which is not located within the jurisdiction of the court which passed the decree by this the interest of the decree holder is protected and safeguarded.
Operation of Precept
After the attachment is carried out following a precept under Section 46 of the CPC, there are farther essential way that need to be taken before the decree can be completely executed operation for Transmission of Decree .The first step is to make an operation under Section 39 of the Code to the Court that firstly passed the decree. This operation seeks the transmission of the decree to the Court that will be responsible for executing the decree. Operation for prosecution latterly, an operation for the prosecution of the decree must be made to the Court to which the decree has been transferred.
It’s important to note that the attachment carried out through a precept in CPC doesn’t automatically spark prosecution proceedings. A separate operation for prosecution must be made in the proper form and only upon similar operation, the factual prosecution process can commence. Thus, the order that issues a precept isn’t a directive for prosecution, and the attachment performing from the precept in CPC isn’t considered an attachment in the environment of prosecution proceedings. To clarify, an order of precept under Section 46 is primarily aimed at easing the prosecution of the decree, and it shouldn’t be incorrect for a step in the factual prosecution proceedings itself.
Limitations of Precept
An order of Precept is a mere step takern to facilitate execution and not an order transferring a decree for execution which the court stated in the case Rai Kissenji v Sri Kissenhttps://indiankanoon.org/doc/633154/?type=print[5].It is for this reason that the effect of attachment in pursuance of the Precept as a general rule limited to two months unless the case is covered by the proviso[6] which held in the case of Hindustan Bicycles v Nath Bankhttps://indiankanoon.org/doc/244887/#:~:text=330%20has%20been%20filed%20by,and%20odd%20in%20the%20original[7].In Gurudiyal Singhs [8]case court held that An order of permanent attachment is therefore illegal.
Also the section applies to the matter which arises after a decree has been passed.Hence,it cannot be invoked in an aid of application for attachment before judgement under Order 38 Rule V mentioned in the case of Chimandas v Mahadevappa Firm.[9] https://indiankanoon.org/doc/1801441/In Melaruno Mal v Bishan Das[10] the court held No attachment can be effected under this section where the property is located outside India.
An order issuing a Precept can be said case decided under Section 115 of the Code.Hence a revision lies against such order.
Case Laws
M.L. Kapoor & Sons v. Union of India (1969)
In this case, the Supreme Court of India held that the executing court has the same powers in executing the decree as if it had been passed by itself. This means that the executing court can take all necessary steps to enforce the decree, including issuing a warrant of arrest or attachment of property, appointing a receiver,selling property, and making payments to the parties.
Sunder Singh v. State of U.P. (2001)
In this case, the Supreme Court of India held that the Executing court is entitled to make orders for the Protection of the property to be executed. The court Held that the executing court can pass orders to prevent The judgment debtor from disposing of or damaging the Property, and can also appoint a receiver to take Possession of the property.
Anil Kumar Sharma v. Sudesh Kumari (2012)
In this case, the Delhi High Court held that the executing court Has the power to set aside the sale of property if it is found that The sale was conducted in an irregular or improper manner. The Court held that the executing court can also order a fresh sale if It is necessary to do so in order to protect the interests of the Parties.These case laws have clarified the scope of Section 46 of CPC And have laid down important principles for the issuance and Execution of precepts.They provide guidance to the executing Courts and to the parties involved in execution proceedings.
Conclusion
The conception of precept in CPC plays a vital part in easing the prosecution of rulings in the legit System. By issuing a precept, the court can instruct another competent court to attach the judgment debtor’s property, precluding jettisons that could harm the directive- proprietor’s interests.
Still, it’s essential to honor that a precept in CPC is n’t an prosecution order itself but serves as a introductory step before the conventional prosecution process. Through this medium, the law aims to insure the operative enforcement of court orders and guard the birthrights of directive- holders in a structured and effective manner.
[1] Concise Oxford English Dictionary
[2] S.46 (1),Code of Civil Procedure 1908
[3] 14 moo Ind app 529
[4]AIR 1936 Lah 486
[5] AIR 1949 Cal 26
[6] S 46(2)
[7] AIR 1957 AP 209
[8] AIR 1936 Lah 486
[9] AIR 1961 AP 417
[10] AIR 1931 Lah 723
