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.