Section 46 of CPC – Precepts

Section 46 of CPC deals with the issuance of precepts in execution proceedings. A precept is a written order issued by a court to another court, directing the latter to take certain actions in relation to a decree passed by the former court.

Scope of Section 46 of CPC

Section 46 of CPC applies to all execution proceedings in which a decree-holder seeks to enforce a decree passed by a court in India. This means that the section applies to execution proceedings in all civil courts in India, including the Supreme Court, High Courts, and subordinate courts.

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 decree-holder must apply to the court that passed the decree for the issuance of a precept. The application must be accompanied by a certified copy of the decree and a certificate from the decree-holder stating that the decree has not been fully executed.
2. The court that passed the decree will examine the application and the accompanying documents. If the court is satisfied that the decree is valid and enforceable and that the decree-holder has taken all necessary steps to execute the decree within its own jurisdiction, it will issue a precept to the court of competent jurisdiction in the area where the property to be executed is situated.
3. The precept will specify the actions that the executing court is to take in relation to the decree. These actions may include the attachment of property, the appointment of a receiver, the sale of property, or the making of payments to the parties.
4. The executing court will receive the precept and will take all necessary steps to execute the decree in accordance with the terms of the precept.

Powers of Executing Court

The executing court to which a precept is issued under Section 46 of CPC 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
• Making payments to the parties

Appeals from Orders of Executing Court

Orders passed by the executing court in execution of a precept under Section 46 of CPC are appealable to the court of which it is a subordinate court. This means that if the executing court is a subordinate court, appeals from its orders will lie to the High Court. However, if the executing court is a High Court, appeals from its orders will lie to the Supreme Court.

Case Laws on Section 46 of CPC

here are some important case laws on Section 46 of CPC:

M.L. Kapoor & Sons v. Union of India (1969):

In this case, the Supreme Court of India held that the powers of the court to which a precept is issued are not limited to the powers of the court that passed the decree. The court 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.

Ram Rattan v. State Bank of India (1970):

In this case, the Punjab and Haryana High Court held that the executing court is entitled to make its own findings on the facts of the case, and that the findings of the court that passed the decree are not binding on the executing court. This means that the executing court can re-examine the evidence and come to its own conclusions about the facts of the case.

S.K. Jain v. National Insurance Co. Ltd. (1981):

In this case, the Delhi High Court held that the executing court is not bound by the interpretation of the decree given by the court that passed the decree. The court held that the executing court is entitled to interpret the decree in its own way, and its interpretation will be binding on 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

Section 46 of CPC plays an important role in ensuring that decrees can be executed effectively throughout India. By providing a mechanism for issuing precepts, the CPC facilitates the enforcement of decrees and ensures that the rights of decree-holders are protected.