What is precept? Please discuss its terms and requirements.

Ans:

Introduction

It means on order, writ, warrant, or process, an order or direction emanating from an authority, to an officer or body of officers commanding him or them to do some act within the scope of their powers.

Receipt--meaning

It is a letter of request by a court which passed a decree requesting another court to attach any property belonging to the judgment debtor.

For example

An order in writing, sent out by a justice of the peace or other like officer, for the bringing of a person or record before him.

Application

Precept is not to be confined to civil proceedings and is not of a more restricted meaning than process. It includes warrants and processes in criminal as well as in civil proceedings.

Object of a receipt

The object of precept is to enable a decree holder to obtain an interim attachment where there is ground to apprehend that he may otherwise be deprived of the fruits of his decree.

Explanation Attachment under precept

An order for a permanent attachment is not one contemplated by this section. An attachment made under this section may continue for more than two months unless the period is extended by order of the court which passed the decree or unless decree is transferred for execution to the attaching court and the decree holder applied for the sale of the property.

For example

When an application for extending the period of the attachment is made before the expiry of two months but the order extending the time is passed after expiry of the period, the order will relate back to the date of the petition and will have a retrospective effect.

Precept, which court may issue

The precept is to be issued by court which passed the decree. It is usual to transfer the decree for execution to the court to which the precept is issued.

For example  

The jurisdiction of the parent court continues for certain purposes of which Section 46 is one, and therefore, it can issue a precept even after the decree is transferred for execution. But the court to which the decree is transferred for execution is not competent to issue a precept.

Power of court to which precept is sent

The court to which a precept is sent has no jurisdiction to question the validity of the precept. Therefore it must attach the property as soon as it receives the precept. The attachment takes effect from the date When the precept is received by the court but the court to which the precept is sent may stay execution if the judgment debtor deposits the decretal amount in court or furnishes sufficient security for payment thereof.

Application for execution

The right to apply for the issue of a precept is not an independent right but a step towards execution in the very nature 01 things, therefore as the decree holder will have the right to apply for a precept.

For example

The right is a continuing right and accrues from time ti) tinic as long as the decree remains executable.

Nature of attachment

A precept is an interim attachment, its operation restricted to a period of two months unless this period is extended, or up to the time of the transfer of the decree to the court by which the attachment has been made. Permanent attachment cannot he made under Section 46.  

It is issued by the court which passed the decree and may be issued by such court even after it has transferred the decree for execution to another court.

It is only an interim measure for the preservation of Property pending the transfer of the decree. A precept can only be issued after the passing of the decree and is different from an attachment before judgment.

Interim attachment

This section only applies to attachment in execution and does not affect the jurisdiction of a court to attach before judgment of an interim attachment order by the court which passed the decree pending the transfer of the decree to the court within whose jurisdiction the property is situate.

Application for precept

The application submitted by the party concerned for a precept cannot he considered one for execution. It is, however a step towards execution and can be made as long as the decree remains executable.

Who may execute precept

Precept can he 'sent only to that court which is competent to execute the decree. Nis competence includes competency regarding subject matter as \veil as peCuniary jurisdiction of the trans(eree court.

Mode of attachment

The court whom a precept is sent is hound to attach the property in accordance with the precept. It can, however not question the validity of precept. Moreover, the attachment under a precept cannot he objected to in accordance with rule 58. Ibid, but may he entertained under Section 151.

The provisions for attachment of property  have been laid down in Order XXI rules 31-57.  

Appeal

An order of precept under this section does not Call under Section 47, i.e., not being one in execution and so is not appealable, The contrary view, it is submitted, is not correct.