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QUESTION | Explain the concept of Precept under CPC, 1908 and also the circumstances under which an order for attachment before judgment is passed by a civil court.
Importance of this question : This question was asked in Haryana Judiciary as 20 marker question.
QUESTION POSTED ON | 05.10.2021
MODEL ANSWER WILL BE POSTED ON | 06.10.2021
Answers can be written till 06.10.2021.
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How to answer this question?
This question has two parts – make a side heading for each part so you cover all parts of the given question.
In first part- discuss the meaning of Precept as provided under Section 46 of CPC, why concept of Precept emerged, in what cases Precept is issued, what are the drawbacks for order of Precept.
In second part, discuss under what situations a property is attached before judgment and under what provisions.
Plan for landmark cases and recent cases on the issue
Meaning of Precept: Section 46 of CPC provides for the concept of Precept. Precept is a request by one court to another court to attach the property which is within the local limits of another court.
Need of Precept order: The concept of Precept came because Section 39(4) provides that court cannot attach the property outside its jurisdiction. Therefore, court issues a Precept order to another court within whose jurisdiction the property to be attached is situated.
Why Precept is issued?
The Precept Order is normally issued by one court to other court while executing a decree to attach the property of the judgment debtor situated in the jurisdiction of that other court.
It simply means that if any property which is to be attached by the court is situated in the territorial jurisdiction of other court, then in such case, the court which has passed the decree can issue a precept order to that other court to attach that property of the judgment debtor.
Drawback of Precept order
But the drawback of Precept is that by way of precept property can be attached for only two months after that it has to be de-attached but the court can extend the period beyond 2 months.
Attachment of property before judgment
Order 38 Rules 5 to 13 provides for attachment of property before the judgment. Attachment of property before the judgment is done for the primary objective of preventing the defendant’s attempt to defeat the decree’s realization which is passed in favor of plaintiff.
In Sardar Govindrao vs Devi Sahai, the Supreme Court observed that “an order for attachment before judgment is given in cases where the plaintiff’s application is successful in convincing the court that-
· the defendant had intended either to delay any decree’s execution or
· obstruct it, or
· is about to give away the whole or any part of his property from the Court’s local limits of the jurisdiction.
Circumstances under which the property can be attached
i. When the court is satisfied that the defendant is about to dispose of the whole or part of his property with intention to obstruct or delay the execution of decree passed against him.
ii. When the court is satisfied that the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.
iii. When defendant fails to show cause that why he should not furnish security or fails to furnish it.
iv. Attachment can be made in the process of execution of decree.
Once the property is attached before judgment it shall not be re-attached in execution of decree. Any property attached on court’s order before the passing of judgment shall not affect the rights of strangers and decree holder is not restricted from applying for sale [ Order 38 Rule 10].
In Hari Sankar v. Bhoori Devi, the court held that in order to ascertain whether this kind of order need to be made, the following two conditions should be satisfied:
That an attempt is made judgment debtor to dispose the property wholly or in part, and
That the intention of judgment debtor behind such disposal is either to obstruct or delay the execution of decree which may passed in favour of decree holder.