Sections 45 and 46 of the Code of Civil Procedure, 1908
Sections 45 and 46 of the Code of Civil Procedure, 1908 deal with execution of decrees outside India and the issue of precepts for temporary attachment of property belonging to a judgment-debtor.
- Section 45 extends the power to send decrees for execution to certain courts established outside India by authority of the Central Government, where the State Government has notified the section to apply.
- Section 46 allows the court which passed the decree to issue a precept to another competent court to attach specified property of the judgment-debtor.
- Attachment under a precept ordinarily cannot continue for more than two months.
- The attachment may continue longer if extended by the court which passed the decree or if the decree is transferred and the decree-holder applies for sale before the attachment ends.
Section 45 CPC - Execution of decrees outside India
So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established by the authority of the Central Government outside India to which the State Government has by notification in the Official Gazette declared this section to apply.
Amendment notes: Section 45 was substituted by the Adaptation of Laws Order, 1937. The words "or continued" were omitted by the Adaptation of Laws Order, 1948. The words "outside India" were substituted by the Adaptation of Laws Order, 1950.
Section 46 CPC - Precepts
(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.
Meaning and practical effect of Sections 45 and 46 CPC
Section 45 extends the decree-transfer framework in Part II of the CPC to certain courts outside India that have been established by authority of the Central Government, but only where the concerned State Government has brought the provision into operation by an Official Gazette notification.
Section 46 provides a protective execution mechanism. A decree-holder may ask the court which passed the decree to issue a precept to another competent court so that specified property of the judgment-debtor can be attached without waiting for the full transfer process to be completed.
The attachment under a precept is temporary. Unless one of the statutory conditions for continuation is satisfied, it cannot remain in force beyond two months.
Important: Applicability of Section 45 depends on the relevant State Government notification. State amendments, High Court rules and local execution rules should also be checked before relying on these provisions in court proceedings.