ENFORCEMENT OF
JUDGMENT
Ravi Nekoo
TIME LIMIT
Section 6(3) Limitation Act 1954 – Judgment valid for 12 years
Order 46 rule 2(1)(a) ROC 2012 - if more than 6 years have lapsed then apply for leave – give good reasons for delay – Tio Chee Hing v Chung Khiaw Bank [1982] CLJ Rep 352
Order 46 rule 6(1) - Writ is valid for 12 months
Order 46 rule 6(2) -Extended writ is valid for 12 months
Judgment against government
Section 33(4) Government
Proceedings Act 1956 –
cannot execute judgment
against government
Non payment of Judgment Sum
Judgment Debtor Summons – Order 74 rule 11A
Writ Of Seizure And Sale –O46 and Order 47 ROC
Garnishee Proceedings –O49
Charging Order –Order 50
Equitable Execution –Order 51
Enforcing specific order of
court
Writ of Possession – Order 45 rule 3
Writ of Delivery – Order 45 rule 4
JUDGMENT DEBTOR SUMMONS
• Must serve JDS personally on JD -Order 74 rule 11D(2) ROC 2012
• JD (if an individual) must come to court personally to explain not payment of judgment sum.
• JD (if company) - the director or company secretary must come to court. They must bring with the company accounting books etc.
• Court will then decide the method of payment (lump sum, periodically etc)
• If JD fails to pay, then committal proceedings will ensue.
JDS - Procedure
2 documents – if individuals
Permintaan Untuk Mendapatkan Saman Penghutang
Penghakiman (Form 174)
Saman Penghutang Penghakiman (Form 177)
JDS - procedure
3 documents - if company
Notis Permohonan – Kebenaran untuk mengeluarkan
Saman Penghutang Penghakiman – Form 176
Afidavit Sokongan - Kebenaran Untuk Mengeluarkan
Saman Penghutang Penghakiman
JDS – Form 177
Cross-examination of JD
When JD comes to court, he is put on the stand, the
oath taken and JD will be asked by court to explain why
Judgment sum not paid.
JC may cross-examine JD.
Court may given an order of commitment – Order 74
r 14(2) – Form 180
Non payment of order of
commitment
JC will file in court a Judgment Notice – Form 179
Judgment notice - JD to explain to court as to why the
Judgment Debtor should not be committed to prison for
having failed to settle the judgment debt.
Judgment notice must be served personally – Order 74
rule 13
Hearing of Judgment notice
Court will decide whether to vary the Order or commit
the JD to prison until judgment debt is paid.
Writ of Seizure and Sale -
movable
Procedure – O46 R6 (movable)
Notice of Application in Form 88 – O46 R3(1)
Supported by an affidavit – O46 R3(2)
Identifying the judgment (date, which court)
State the amount (original due, due now)
Reasons for delay (if more than 6 years)
Issue of writ of execution -
movable
File praecipe – Form 89 (signed by the solicitor)
File the writ of seizure and sale - movable (Form 84)
Bailiff will seize the movable property and issue notice
of seizure – Form 91
Bailiff will hold a public auction to sell – Order 46 rule
23
WSS- immovable – to seize
property
1st step – apply for perintah larangan in High Court –
Order 47 rule 6(a) – valid for 6 months (order 47
rule 6(f)
Procedure – Notis Permohonan (ex-parte) supported by
affidavit – Order 47 rule 6(b) and (c)
Serve the “perintah larangan” on JD – Order 47 rule 6(d)
Register the “perintah larangan” in Land office –
Order 47 rule 6(e)
WSS – immovable – to sell
Once the property is seized, the following documents must be filed
an application for leave to issue a writ of execution -Form 88 (Order 46 rule 3(1) ROC 2012)
an affidavit in support of the said application
A praecipe for the writ of execution
A copy of writ of seizure and sale
Bailiff will fix date for public auction
Writ of possession
Taken out where a
person having a legal
interest in the property
wants to take possession
of a property Eg.
Landlord
Judgment must
specifically state that
Landlord diberi “milikan
kosong” - Leong Ah
Weng v Neoh Thean Soo
& Anor [1983] 2 MLJ
119
This writ of execution is
taken out where a
person having a legal
interest in the property
intends to take
possession of a property.
Procedure – writ of possession
4 documents - Order 45 rule 3 ROC 2012.
Notis Minta Kebenaran Mengeluarkan Pelaksanaan Atas
Perintah Milikan
Afidavit Sokongan
Must serve on every person in actual possession of the land –
Order 45 rule 3(3)
Praecipe untuk Writ Pelaksanaan atas perintah milikan
Writ Milikan – Form 87
Writ of delivery
A writ of delivery is used
when there is a judgment
requiring one party to
deliver a specific item to
the other party
Writ of delivery – procedure
Where the plaintiff is seeking the delivery of the goods
or the assessed value of the goods - apply for a writ of
delivery. Order 45 rule 4(1)(a) ROC 2012.
the plaintiff is only seeking the delivery of the goods
and not its assessed valued then the plaintiff must apply
for leave to obtain a writ of specific delivery. Order 45
rule 4(2)(b) ROC 2012.
Garnishee Order – Order 49
JC may garnish money
JD is supposed to
receive from a TP
(garnishee)
Procedure
Ex parte notice of
application
Affidavit
(Form 98)
Garnishee proceedings – procedure
The conditions which the Judgment creditor must
satisfy are as follows:-
there is an amount unpaid from the judgment sum
the garnishee is indebted to the judgment debtor. The
judgment creditor must explain the source of this
information or the reason for believing that the garnishee
is indebted to the judgment debtor.
that the garnishee is within jurisdiction (see Order 49
rule 2(2)(a) and (b) ROC 2012
Garnishee proceedings
The debt which is attachable must already be due to
the judgment debtor at the time the application for
garnishment is made
Hongkong and Shanghai Banking Corporation v Goh Su Liat
[1985] 1 LNS 119
Garnishee order to show
cause
File an order for the garnishee to show cause (Form 97)
as to why the money due to the Judgment Debtor
should not be garnished. Order 49 rule 1(2) ROC 2012.
Order to show cause must be served personally on the
garnishee (Order 49 rule 3(1) ROC 2012).
Garnishee Order
Garnishee must show cause
If Garnishee does not attend court – then the garnishee
order is made absolute – Order 49 R4
Garnishee Order
If garnishee attends court
Court can either decide the matter summarily
Court can fix the matter for trial
Order 49 R5
Charging Order –
Order 50
Order imposing charge on
securities e.g. shares
Procedure
Ex parte notice of
application
Supported by affidavit –
specify the share which
needs to “charged”
• Court gives leave
Charging order - affidavit
Order 50 rule 3 ROC 2012
stating the amount unpaid;
specify the securities i.e. shares, stocks in the company
owned by the judgment debtor.
Charging Order- show cause
Serve Order Nisi to show cause on judgment debtor and
the companies which owns the shares– Order 50 r 4
Effect of order to show cause – Order 50 r 5
JD cannot sell or transfer shares
If transferred/sold – company liable to pay JC
Court can make the charging order ‘absolute’ if no cause
to the contrary – Order 50 R6 (3)
Equitable execution–Order 51
To attach royalty, rentals receivable
Court may appoint receiver on the application of JC
Application made under Order 30
Notice of application (ex parte)
Supported by an affidavit
Additional prayer –injunction
Receiver must be given “security”
Cannot “touch”
Pension - Section 19 Pensions Act 1980
Wages of a seaman or apprentice -Section 142(1)(a) Merchant Shipping Ordinance 1952
Compensation received by workmen for injuries - Section 11 Workmen’s Compensation Act 1952
EPF - Section 51 EPF Act 1991
Money kept is BSN – Section 35 Bank Simpanan Nasional Act 1974 –but GM may retain a sum and JC can apply for release of this sum through garnishee proceedings.