Section 46 governs only the attachment in the execution of a decree and does not come into play in the context of Order 38 Rule 5 or Order 21 Rule 46 [Chimandas v. Mahadevappa Firm, A 1961 AP 416].

The object is to enable the decree-holder to obtain an interim attachment when it is apprehended that he may otherwise be deprived of the fruits of his decree. A transferee court cannot issue a precept [Langley & Co v. Lakshmi, A 1926 S 157]. The issue of a precept does not have the effect of transferring a decree for execution. The court receiving a precept has no jurisdiction to entertain an application under

Order 21 Rule 2 CPC [Champalal v. Mohanlal, A 1959 MP 397]. An attachment under a precept is not an attachment in execution. This pertains to the procedure after attachment by precept [Rai Kissenji v. Sri Kissen, A 1940 C 26: 1939, 2 Cal].

A precept can be issued by the court even after it has transferred the decree to another court for execution. The receiving court cannot question the validity of the precept [Galstaun v. Dinshaw, 31 CWN 653: A 1927 C 581]. An indefinite order stating that attachment is made permanently cannot be made [Gurdial v. Khazan, A 1936 L 486].

A formal execution application will be considered to be an application for sale, and if made within two months, an order beyond two months will not be without jurisdiction [Abdur Rahman v. Tripura M Bank, A 1972 Gau 61 FB]. The two-month period can be extended, although the order is passed after the period, provided the application for extension is filed within that period [Sivakolundo v. Ganapathy, 34 IC 302: 3 LW 336].

Precepts can be extended beyond two months in either of the ways specified in the proviso, and in no other [Hindusthan Bicycle & Co. v. Nath Bank, A 1957 P 209].

The mere expiry of the time of attachment would not take away the jurisdiction of the executing court to give a direction to the other court to conduct the auction [Karri Venkata Reddi v. Central Bank of India, A 1990 Andh Pra 81].

The receiving court should wait for an application for execution to be made [Ramji v. R, A 1933 A 844]. That court has jurisdiction to accept money or security from the judgment-debtor [Puran v. Dina, A 1926 L 433]. Money attached under precepts may be paid to another decree-holder [Gurdial v. Khazan, supra].

Section 46 does not apply to an order for attachment before judgment [Suraj v. Mohar, A 1941 A 212]. A precept for the attachment of property in the custody of the court is allowed [Khasan v. Moti, A 1935 L 914].

Written By: S Kundu & Associates
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