WHAT DO I DO WITH THIS PAPER JUDGMENT?

WHAT DO I DO WITH THIS PAPER JUDGMENT? A client of yours defaulted in payments. You have sent multiple letters and emails reminding the sums due but no response. You decided to use legal action against the defaulted party. After going all the hustles from appointing the lawyer, sending notice of demand, writ, filing all the cause papers and undergoing trial (disputed issues), finally, after a considerable period of time, you have court’s judgment in your favor.

Now, you are confused and unsure about how to get your money back. This is a typical situation facing many. Hence to enforce the paper judgment, Rules of Court 2012 has listed the mode of execution that you may choose from to enforce your judgment:

1. A writ of seizure and sale;
2. Writ of possession;
3. Writ of delivery;
4. Writ of distress;
5. Judgment Debtor Summons;
6. Garnishee proceedings;
7. Bankruptcy; and
8. Winding-up.

Writ of Seizure and Sale (WSS) – Order 46 and Order 47 ROC 2012

This mode of execution allows you to seize and sell the movable property of the judgment debtor. The procedures are as follows:

1. File Notice of Application and Affidavit in Support before filing Writ of Seizure and Sale (Form 84 for movable property and Form 85 for immovable property) and praecipe;
2. Deliver the sealed WSS to Bailiff and endorse by the Bailiff the day, hour and minute of delivery.
3. Fix execution date;
4. Deposit a sufficient sum of money to defray the cost of the execution before execution takes place
5. Date of execution – writ may be executed between the 9am – 4pm;
6. Notice of Seizure in form 91 and inventory of property removed shall be given to the debtor if immovable property is seized and file a copy of notice to Court;
7. 7 das is given for the debtor to satisfy the debt. If failed, Bailiff will proceed with sales of property;
8. Sales of property by Bailiff through public auction between 9am – 4pm (Bailiff file Notice of Public Auction in Form 92 before the sales); and
9. Distribute the proceed of sales after deducting the necessary costs and expenses.

Writ of possession – Order 45, Rule 3 and Order 46 Rules of Court 2012

This type of writ may be enforced if the judgment or order for the giving out possession of immovable property is not complied with. The judgment creditor must apply for leave of the court to enforce judgment through writ of possession. Serve notice of the proceeding to every person in actual possession of the immovable property

Writ of Delivery – Order 45, Rule 4 and Order 46 Rules of Court 2012

This type of writ may be enforced if the judgment for the delivery of any movable property, the alternative of paying the assessed value of the property is not complied with. The judgment may be enforced through writ of delivery to recover the property or its assessed value or with writ of specific delivery (with leave of Court).

Writ of Distress – Order 47, Rule 3 Rules of Court 2012 and Distress Act 1951

Landlord may file writ of distress in order to recover the arrears of rent by the tenant. The procedure is laid down under Rules of Court 2012 and Distress Act 1951. Under the Act, Warrant of Distress may be applied ex-parte to the court in Form 184 for rental due not exceeding the period of 12 completed months of the tenancy. The Warrant of distress will be issued in Form 186. The Warrant of Distress will be served to Bailiff together with a sum to cover the fees and expenses of the Bailiff.

The property then will be seized.  The Bailiff will make an inventory and approximate valuation and give it to the tenant Notice of the seizure together with a copy of the inventory and valuation. The tenant must satisfy the outstanding sum or apply for order to restrain the sale. In the absence any of the 2 events, the seized property will be sold by public auction (procedure under Rules of Court 2012 will apply) and the net proceeds of sales after deducting the fees and expenses of the Bailiff will be given to the Landlord.

Judgment Debtor Summons – Order 48 Rules of Court 2012 and Debtors Act 1957

This a mode of execution where the judgment debtor will be examined by the Court on his financial capability and means to satisfy the judgment sum owed to the judgment creditor. The application can be made in Form 95 supported by affidavit. The court then will order the sum that the judgment debtor has to pay by installments or in full. If the judgment debtor fails to comply with the order, the court will send Judgment Notice to him to show cause why he/she should not be sent to prison for such failure.

Garnishee proceedings – Order 49 Rules of Court 2012

This mode can be used if judgment debtor has the knowledge that third party owes money to the judgment debtor. This includes bank accounts where judgment creditor may ask the Court for order against the bank. The judgment debtor may apply by filing notice of application (Form 98) supported by Affidavit. Order to show cause shall be served 7 days before the date appointed for further consideration on this matter to the third party (garnishee) and judgment debtor. If the garnishee does not attend or does not dispute, Court may make order against the garnishee. Any payment by the garnishee in compliance with the order shall be a valid discharge of his liability to the judgment debtor. The judgment debtor then has no right to demand such payment from the Garnishee.

Bankruptcy – Insolvency Act 1967 and Insolvency Rules 2017

Bankruptcy is not per se a mode of execution. However, it is a mode you can resort to recover your debt. The bankruptcy proceedings, in summary, are as follows:

1. Serve judgment to the Judgment Debtor;
2. File Bankruptcy Notice together with the related documents to the court;
3. Serve the Bankruptcy Notice to the Judgment Debtor;
4. File Creditor’s Petition to the court;
5. Serve the Creditor’s Petition to the Judgment Debtor and Director General of Insolvency;
6. Hearing of the Creditor’s Petition; and
7. Issuance of Adjudication Order and Receiving Order (AORO) by the court.

Winding-up – Companies Act 2016

If the judgment debtor is a company, the company can be wound up due to its inability to pay its debts. There are 2 types of winding-up: voluntary winding-up (In general, by the company itself) and compulsory winding-up (By the judgment creditor). The procedures, in summary, are as follows:

1. Issue Statutory Demand as provided under Section 466(1) Companies Act 2016;
2. If judgment debtor fails to satisfy the debt within 21 days, it can be presumed that the judgment debtor unable to pay its debt;
3. File winding-up petition to court within 6 months from the expiry of 21 days;
4. Serve winding up petition to the judgment debtor;
5. Advertise winding-up petition in newspaper according to the court direction;
6. Hearing;
7. Court orders winding up against the judgment debtor; and
8. Court appoints liquidator.

For any enquiry and appointment on this matter, please contact Hafiz Zubir & Co at [email protected] or 03-8926 0823.