Wednesday, 25 November 2015

Precept under Code of Civil Procedure

Precept in simple terms means a command, instruction, or order intended as an authoritative rule of

action.
In legal terms, Precept means ‘a legal direction by one court to another court.”
The Precept Order is normally issued by one court, while executing a decree, to another court of other area to attach the property of the judgment debtor situate in that area.
In other words, if a property to be attached is situate in the area of another court’s territorial jurisdiction, then the court which passed the decree can issue a precept order to that court to attach that property of the judgment debtor.

Every court has its jurisdiction within the limits of its territorial area and not beyond that. Therefore the court which passed the decree shall have power to issue such Precept order to another court to attach the property of the judgment debtor property which situate within its territorial jurisdiction.
The provision of precept has been provided u/s. 46 of the Code of Civil Procedure, 1908. Section 46 of the Code of Civil Procedure, 1908 reads as:

“(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.”


A precept is not an Execution petition. It is only intended to enable the Decree holder to obtain an interim attachment when it is apprehended that he would be deprived of the fruits of the decree. It is a request, by the court, which passed the decree to another court by which attachment has been made. The attachment in pursuance of a precept is limited to two months unless it is extended further. The Decree holder necessarily files an execution petition in the court, which has attached the property for sale of the property. Every application for issue of a precept shall be in the form of an interlocutory application by assigning proper reasons.

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