« EdellinenJatka »
RULES OF CIVIL PROCEDURE.
issue proper writ of execution.
Obstruction to execution of decree.
By judgment debtor.
Penalty for obstruction.
elapsed between the date of the decree and the application for execution, if the application be made within one year from the date of the last order obtained on any previous application for execution: and provided further, that no such notice shall be necessary in consequence of the application being against such representative, if upon a previous application for execution against the same person the Court shall have ordered execution to issue against him.
28. When such notice is issued, if the party shall not appear, or shall not show sufficient cause to the satisfaction of the Court why the decree should not be forthwith executed, the Court shall order it to be executed accordingly. If the party shall appear and shall offer any objection to the enforcement of the decree, the Court shall make such order as in the circumstances of the case may seem to be just and
4. Issue of the Writ of Execution.
29. Upon the application of the decree holder the Registrar shall, subject to the provisions of the preceding rules, issue the proper writ for the execution of the decree.
EXECUTION AFFECTING PROPERTY.
1. Decrees for Immovable Property.
1. If in the execution of a decree for land or other immoveable property, the officer executing the same shall be resisted or obstructed by any person, the person in whose favour such a decree was made may apply to the Court at any time within one month from the time of such resistance or obstruction. The Court shall fix a day for investigating the complaint, and shall summon the party against whom the complaint is made to answer the same.
2. If it shall appear to the satisfaction of the Court that the obstruction or resistance was occasioned by the judgment debtor, or by some person at his instigation, on the ground that the land or other immoveable property is not included in the decree or on any other ground, the Court shall inquire into the matter of the complaint, and make such order as may be proper under the circumstances of the
3. If the Court shall be satisfied, after such investigation of the facts of the case as it may deem proper, that the resistance or obstruction complained of was without any just cause, and that the complainant is still resisted or obstructed in obtaining effectual possession of the property adjudged to him by the decree, by the judgment debtor, or some person at his instigation, the Court may, without prejudice to any proceedings to which such judgment debtor or other person may be liable for such resistance or obstruction, commit the judgment debtor or such other person to prison as for contempt of Court, for such period as may be necessary to prevent the continuance of such obstruction or resistance.
4. If it shall appear to the satisfaction of the Court that the resistance or obstruction to the execution of the decree has been occasioned by any person other than the judgment debtor claiming bona fide to be in possession of the property on his own account, or on By any person account of some other person than the judgment debtor, the claim other than the judgment shall be numbered and registered as a suit between the claimant as debtor assertplaintiff and the decree-holder as defendant, and the Court shall, ing a claim to without prejudice to any proceedings to which the claimant may possession. be liable for such resistance or obstruction, proceed to investigate the claim, in the same manner and with the like power as if a suit for the property had been instituted by the claimant against the decreeholder under the provisions of this schedule, and shall make such order for staying execution of the decree, or executing the same, as it may deem proper in the circumstances of the case.
5. If any person other than the judgment debtor shall be dis- Where right possessed of any land or other immoveable property in execution of a decree, and such person shall dispute the right of the decree-holder to disputed. dispossess him of such property under the decree on the ground that the property was bonâ fide in his possession on his own account, or on account of some other person than the judgment debtor, and that it was not included in the decree, or if included in the decree, that he was not a party to the suit in which the decree was made, he may apply to the Court within two months from the date of such dispossession; and if, after examining the applicant, it shall appear to the Court that there is probable cause for making the application, the application shall be numbered and registered as a suit between the applicant as plaintiff and the decree-holder as defendant, and the Court shall Form 45. proceed to investigate the matter in dispute in the same manner and with the like powers as if a suit for the property had been instituted by the applicant against the decree-holder.
6. The decision of the Court under the provisions contained in either of the last preceding rules shall be of the same force or effect as a decree in an ordinary suit, and no fresh suit shall be entertained between the same parties or persons claiming under them in respect of the same cause of action.
RULES OF CIVIL PROCEDURE.
2. Execution by Attachment of Property.
7. If the decree be for money, and the amount thereof is to be Mode of levied from the property of the person against whom the same may have been pronounced, the Court shall cause the property to be attached in the manner following:
Effect of rules.
decision undor the two last
& Where the property shall consist of goods, chattels, or other Moveable moveable property in the possession of the judgment debtor the property in attachment shall be made by actual seizure, and the Sheriff or other possession of officer shall keep the same in his custody, and shall be responsible for the custody thereof.
9. Where the property shall consist of goods, chattels, or other Where moveable property to which the judgment debtor is entitled subject to subject to lie a lien or right of some other person to the immediate possession thereof, third parties. the attachment shall be made by a written order prohibiting the.
RULES OF CIVIL PROCEDURE.
shares in public companies.
Property in the custody of
a public officer or in custodia
Service of prohibitory Orders.
Private alienation after attachment void.
person in possession from giving over the property to the judgment debtor.
10. Where the property shall consist of lands, houses, or other immoveable property, or any interest therein, either at law or in equity, the attachment shall be made by a written order prohibiting the judgment debtor from alienating the property by sale, gift, or in any other way, and all persons from receiving the same by purchase, gift, or otherwise, and the Sheriff may also, by direction of the Court, take and retain actual possession thereof.
11. Where the property shall consist of debts not being negotiable instruments, the attachment shall be made by a written order attaching the debts and requiring the person indebted to the judgment debtor to show cause why he should not pay over such debts to the execution creditor in satisfaction of the judgment debt, and in the case of shares in any public company or corporation the attachment shall be made by a written order prohibiting the person in whose name the shares may be standing from making any transfer of the shares or receiving payment of any dividends thereof, and the manager, secretary, or other proper officer of the company or corporation from permitting any such transfer or making any such payment, until such further order.
12. Property in the custody or under the control of any public officer in his official capacity shall be liable to attachment in execution of a decree with the consent of the Queen's Advocate, and property in custodia legis shall be liable also to attachment by leave of the Court. In such cases the order of attachment must be served on such public officer, or on the Registrar, as the case may be.
13. Where the property shall consist of a negotiable instrument, the attachment shall be made by actual seizure, and the Sheriff or other officer shall bring the same into Court, and such instrument shall be held subject to the further orders of the Court.
14. In the case of goods, chattels, or other moveable property not in the possession of the judgment debtor, an office copy of the order shall be delivered to the person in possession of the property. In the case of lands, houses, or other immoveable property, or any interest therein, the order may be published in such manner as the Court directs, and a memorial thereof shall also be registered in the Court. In the case of debts, office copies of the order shall be delivered to or served upon each individual debtor. And in case of shares in the capital or jointstock of any public company or corporation, an office copy of the order shall be delivered to or served upon the manager, secretary, or other proper officer of the company or corporation.
15. After any attachment shall have been made by actual seizure, or by written order as aforesaid, and in case of an attachment by written order, after it shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the Court of the property attached, whether by sale, gift or otherwise, and any payment of the debt, or debts, or dividends, or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of Court.
16. If the garnishee does not forthwith pay into Court the amount due from him to the judgment debtor, or an amount equal to the
judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, and proof of service be made, then the Court may order execution to issue and it may issue accordingly without any previous garnishee writ or process to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt.
does not dispute debt.
17. If the garnishee disputes his liability, the Court, instead of Procedure if making an order that execution shall issue, may order that any issue or debt disputed. question necessary for determining his liability, be tried or determined in the same manner in which any issue or question in a suit may be tried or determined.
RULES OF CIVIL PROCEDURE.
18. Whenever, in any proceedings to obtain an attachment of Where claim debt, it is suggested by the garnishee that the debt sought to be by a third attached belongs to some third person, or that any third person has a lien or charge upon it, the Court may order such third person to appear and state the nature and particulars of his claim upon such debt.
19. After hearing the allegations of such third person, and of any Procedure other person whom the Court may order to appear, or in case of such upon appearthird or other person not appearing when ordered, the Court may claimants. order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried and determined, and may bar the claim of such third or other person, or make such other order upon such terms with respect to any lien or charge and otherwise as the Court shall think just.
21. In all cases of attachment under this Order, it shall be competent to the Court, at any time during the attachment, to direct that any part of the property so attached as shall consist of money or bank notes, or a sufficient part thereof, shall be paid over to the party applying for execution of the decree, or that any part of the property so attached as may not consist of money or bank notes, so far as may be necessary for the satisfaction of the decree, shall be sold, and that the money which may be realized by such sale, or a sufficient part thereof, shall be paid to such party.
20. Payment made by, or execution levied upon, the garnishee Effect of shall be a valid discharge to him as against the judgment debtor, to payment or levy. the amount paid or levied, although such proceedings may be set aside or the judgment reversed.
order money or proceeds of property attached to be paid to the
22. When the property attached shall consist of debts due to Appointment the party who may be answerable for the amount of the decree, or of any lands, houses, or other immoveable property, it shall be competent to the Court to appoint a manager or managers of the said property, with power to sue for the debts and to collect the rents or other receipts and profits of the land or other immoveable property, and to execute such deeds or instruments in writing, as may be necessary for the purpose, and to pay and apply such rents, profits, or receipts, towards the payment of the amount of the decree and costs; or, when the property attached shall consist of land, if the judgment debtor can satisfy the Court that there is reasonable ground to believe that the amount of the judgment may be raised Mortgage in by the mortgage of the lands, or by letting them on lease, or by lieu of sale on disposing by private sale of a portion of the lands, or of any other
RULES OF CIVIL PROCEDURE.
In absence of judgment debtor, Court may order
lieu of sale.
property belonging to the judgment debtor, it shall be competent to the Court, on the application of the judgment debtor, to postpone the sale for such period as it may think proper, to enable the judgment debtor to raise the amount. In any case in which a manager shall be appointed under this Order, such manager shall be bound to render due and proper accounts of his receipts and disbursements, from time to time, as the Court may direct.
23. If the judgment debtor shall be absent from the jurisdiction, and it shall appear to the satisfaction of the Court that the public sale of any of his property which has been attached, consisting of lands, houses, or any interest therein, is objectionable, and that satisfaction of the decree may be made within a reasonable period by a temporary alienation of such property, the Court may of its own motion, instead of proceeding to a public sale of such property, order that provision be made for the satisfaction of the decree by mortgage thereof, and may authorise the Registrar, if necessary, to execute the mortgage deed in lieu of the judgment debtor or any other necessary parties, and may make such orders in relation to such mortgage as may be requisite to carry out this provision; and the execution of such mortagage deed by the Registrar shall have the same effect as the execution thereof by the judgment debtor or other necessary parties.
Order for withdrawal of
24. If the amount decreed, with costs and all charges and attachment on expenses which may be incurred by the attachment, be paid into satisfaction of Court, or if satisfaction of the decree be otherwise made, an order shall be issued for the withdrawal of the attachment; and if the defendant shall desire it, and shall deposit in Court a sum sufficient to cover the expense, the order shall be notified in the same manner as herein before prescribed for the notification of the attachment; and such steps shall be taken as may be necessary for staying further proceedings in execution of the decree.
3. Claims to Attached Property.
25 In the event of any claim being preferred to, or objection thereof by the offered against, the sale of lands, or any other immoveable or moveable property which may have been attached in execution of a decree, or under any order for attachment made before judgment, as not liable to be sold in execution of a decree against the judgment debtor, the Court shall, subject to the proviso contained in the next succeeding rule, proceed to investigate the same with the like powers as if the claimant had been originally made a party to the suit, and if it shall appear to the satisfaction of the Court that the land or other immoveable or moveable property was not in the possession of the party against whom execution is sought, or of some person in trust for him, or in the occupancy of persons paying rent to him at the time when the property was attached, or that, being in the possession of the party himself at such time, it was so in his possession not on his own account or as his own property, but on account of or in trust for some other person, the Court shall make an order for releasing the said property from attachment. But if it shall appear to the satisfaction