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.
