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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

  

ORDER 22

  

WRITS OF EXECUTION B GENERAL

 

Interpretation

1. In this Order, unless the context otherwise requires, a writ of execution includes a writ of fieri facias, a writ of possession, a writ of delivery and any other writ in aid of execution.

Effect of writ of execution

2.(1) A writ of execution may be enforced in any part of the country.

(2) A writ of execution against goods binds goods in the hands of the judgment debtor as from the time when the writ is issued, but does not affect the title to goods acquired by a person in good faith for valuable considera tion.

(3) Despite subrule (2), if that person who acquires title to the goods has notice that the writ or any other writ by virtue of which the goods of the judgment debtor may be seized or attached has been delivered to the judgment debtor but remains unexecuted in the hands of the Registrar then execution may be levied against the goods.

(4) Execution against immovable property may be commenced by the judgment creditor but if the judgment debtor provides information about the debtor's movable property sufficient to satisfy the judgment debt and costs to the Court or judgment creditor within twenty-one days of the commencement of execution, the execution against the immovable property shall be stayed.

(5) Where the execution is levied against immovable property, there shall be endorsed on the writ of execution a statement that there was not sufficient movable property to satisfy the judgement debt ..

(6) Subject to subrule (4), either movable or immovable property which belongs to the judgment debtor whether held in the judgment debtor's name or by another person in trust for or on behalf of the judgment debtor, is liable to attachment and sale in execution of the judgment or order.

Necessity for leave to issue writ of execution

3. (1) A writ of execution to enforce a judgment or order may not issue without leave of the Court where

(a) six years or more have elapsed since the date of the judgment or order,

(b) a change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order,

(c) the judgment or order is against the assets of a deceased person which has come into the hands of that deceased person's executors or administrators after the date of the judgment or order, and it is sought to issue execution against those assets,

(d) under the judgment or order, a person is entitled to a relief subject to the fulfilment of a condition which it is alleged has been fulfilled, or

(e) goods to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.

(2) Where the Court grants leave for the issue of a writ of execu­tion and the writ is not issued within one year after the date of the order that grants the leave, the order shall cease to have effect but a fresh order may be made at anytime within six months after the old order had ceased to have effect.

Writ in aid of other writ

4. A writ of execution which is in aid of another writ of execution shall not issue without leave of the Court.

Application for leave to issue writ

5. (1) An application for leave to issue a writ of execution may be made ex parte.

(2) The application shall be supported by an affidavit which

(a) identifies the judgment or order to which the application relates and, if the judgment or order is for the payment of money, states the amount originally due and the amount due under it at the date of the application;

(b) states, where the case falls within rule 3(1)(a), the reasons for the delay in enforcing the judgment or order;

(c) states, where the case falls within rule3(1)(b), the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

(d) states where the case falls within rule 3 (l)(c) or (d), that a demand to satisfy the judgment or order has been made on the person liable to satisfy the judgment or order and that the person has refused or failed to do so; and

(e) gives any other information that is necessary to satisfy the Court that

                            (i)     the applicant is entitled to proceed to execution on the judgment or order in question, and

(ii) the person against whom it is sought to issue execution is liable to execution on the judgment.

(3) The Court which hears the application may

(a) grant leave in accordance with the application, or

(b) order that any issue or question, on which a decision is necessary to enable the rights of the parties to be determined be tried in a manner in which a questiOll of fact or law which arises in an action may be tried,

and in either case, may impose terms as to costs or otherwise as it considers just.

Issue of writ of execution

6.(1) A writ of execution is issued when it is sealed by the Registrar.

(2) A request for the issue of a writ of execution shall be filed before the writ is issued.

(3) The request shall be signed by the person entitled to the execu­tion, or by that person's lawyer.

 (4) On receipt of a request for the issue of a writ of execution, the Registrar shall make a note of the request, and of the date and hour of receipt.

(5) The Registrar may seek the direction of the Court as to any request for issue of a writ of execution and may decline to issue the writ.

(6) A writ of execution shall only be sealed if at the time it is tendered for sealing

(a) the Registrar is satisfied that the period, if any, specified in the judgment or order for the payment of any money or for any other action to be taken under the judgment or order has expired, and

(b) the person tendering it produces

(i) the judgment or order on which the writ is to issue or an office copy of the judgment or order, and (ii) the order granting leave or evidence of the grant of leave where the writ may not issue without leave of the Court.

(7) The Registrar shall indorse on every writ of execution the date on which it is issued.

(8) Unless the Court otherwise directs, a writ of execution is valid in the first instance for twelve months beginning with the date of its Issue.

Duration and renewal of writ of execution

7. (1) For the purpose of execution, writs of execution shall be issued in the order they are applied for.

(2) ~/here a writ is not wholly executed and an application for extension is made to the Court before the day on which the writ would otherwise expire, the Court may by order extend the validity of the writ for a period of twelve months at anyone time, beginning with the day on which the order is made.

(3) A writ, which has had its validity extended under this rule shall only be executed, if

(a) either the writ is sealed with the seal of the office of which it is issued showing the date on which the order which extends its validity was made, or

(b) the applicant for the order serves on the Registrar to whom the writ is directed, a notice in the specified form, sealed with the seal of the office out of which it is issued, informing that Registrar of the making of the order and the date of the order.

(4) The priority of a wnt, which has its validity extended under this rule is determined by reference to the date on which the writ is originally delivered to the Registrar.

(5) The production of a writ of execution, or of the notice in subrule (3), provides evidence that the validity of that writ or of the writ referred to in that notice, has been extended under this rule.

Procedure after issue of writ of execution

8. (1) A writ of execution shall be enforced by a bailiff of the Court acting in accordance with the instructions of the Registrar.

(2) A bailiff who is responsible for the enforcement of a writ of execution shall

(a) as soon as possible return the writ to the Registrar with a statement of account that shows

(i) the amount realized,

(ii) the amount due to the bailiff for fees and expenses, and

(iii) the balance, if any,

(b) pay the balance under paragraph (a) to the Registrar, and (c) where a sale is held, deliver to the Registrar a duly certified account.

(3) The Registrar shall pay the balance to the execution creditor or other person entitled to the balance.

(4) If for any reason the balance is not paid to the person entitled to the balance within fourteen days after the receipt of the balance by the Registrar, the Registrar shall after that date, deal with it in the same manner as the Registrar deals with money paid into Court.

(5) A bailiff shall not pay any money realized by a writ of execution to the execution creditor or to the execution creditor's lawyer or agent. (6) The Registrar shall pay mileage money to the bailiff, but the bailiff may ask the execution creditor to pay it to the Registrar in the first ~ instance.

(7) A bailiff shall not receive or demand any subsistence allowance or any fee or charge whatsoever in respect of the execution of any writ, except the mileage money, fees and expenses which the bailiff is entitled to and which are stated in the statement of account delivered by the bailiff to the Registrar.

(8) The Registrar shall

(a) keep a book in which the Registrar shall enter the date of the return of every writ, the amount realized, the amount of fees, expenses and the balance paid into court, and

(b) file the receipts for the balance as well as the voucher in support of the entry in the book required to be kept under paragraph (a).

Return of writ of execution

9. (1) A party at whose instance a writ of execution is issued may serve a notice on the Registrar to whom the writ is directed requiring the Registrar, to endorse on the writ within the time specified in the notice, a statement of the manner in which the Registrar executes the writ and to send to that party a copy of the statement.

(2) If a Registrar on whom the notice is served fails to comply with the notice, the party who serves the notice may apply to the Court for an order directing the Registrar to comply with the notice.

Claims by other person (Interpleader)

10. (1) A person who makes a claim

(a) to or in respect of a property taken or intended to be taken in execution under process of the Court, or

(b) to the proceeds or value of that property,

shall give notice of the claim to the Registrar and include in the notice a statement of the person's address for service.

(2) On receipt of a claim made under submle (1), the Registrar shall immediately give notice to the execution creditor who shall within four days after receiving the notice give notice as set out in Form 14 in the First Schedule, to the Registrar to inform the Registrar of whether the claim is disputed or admitted.

(3) Where

(a) the execution creditor

(i) gives notice under submle (2) to the Registrar which disputes the claim, or

(ii) fails to give the reql.;lired notice within the period specified in subm1e (2), and

(b) the claim made under submle (1) is not withdrawn, the Registrar may apply to the Court for relief.

 (4) An application for relief by the Registrar under this rule shall be made ex parte to the Court to seek an order that requires the claimant and the execution creditor to appear before the Court on a date specified in the order for the issue between them to be determined.

(5) Where the execution creditor gives notice under subrule (2) to the Registrar which admits the claim, the Registrar shall immediately withdraw from possession of the property claimed and may apply to the Court for an order to prevent an action against the Registrar for having taken possession of the property.

(6) Notice of an application under subrule (5) shall be served on the person who makes a claim under subrule (1) to or in respect of the property concerned, and that person may attend the hearing of the ap­plication.

(7) An execution creditor who gives notice in accordance with subrule (2) which admits the claim, is liable to the Registrar only for the fees and expenses incurred by the Registrar before receipt of that notice.

Powers of Court hearing application for relief

11. (1) Where in proceedings that arise out of an order made under subrule (4), all the persons who make adverse claims to the property in dispute, in this rule referred to as the claimants, appear at the hearing, the Court may

(a) summarily determine the question in issue between the claimants and the execution creditor and make an order accordingly on terms that are just; or

(b) order that any issue between the claimants and the execution creditor be stated and tried, and direct which of them is to be plaintiff and which defendant.

(2) Where a claimant, who has been duly served with notice of an order made under subrule (4), fails to appear or appears but fails or refuses to comply with an order made after the appearance, the claimant, and any person who claims under the claimant shall be forever barred from the prosecution of the claimant's claim against the Registrar and any person claiming under the Registrar.

(3) Subrule (2) does not affect the rights of the claimants as between themselves.

(4) Where a claimant claims to be entitled to any property as security for debt, the Court may

(a) order that the property or part of the property be sold, and

 (b) direct that the proceeds of sale be applied in a manner and on terms that the Court considers just and that are specified in the order.

(5) In furtherance of this rule the Court may give judgment or make an order that may finally dispose of all questions arising between a claimant and the execution creditor.

(6) An appeal against the judgment given or an order made under subrule (5) shall be filed within fourteen days from the date of the judg­ment or order in accordance with Order 51 rule 16 of c.r. 47.

 

 

 

 

 

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