« EdellinenJatka »
of the Court that the land or other immoveable or moveable property was in possession of the party against whom execution is sought as his own property, and not on account of any other person, or was in the possession 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, the Court shall disallow the claim.
Claim or objection to be preferred at the earliest
26. The claim or objection shall be made at the earliest opportunity to the Court; and if the property to which the claim or objection applies shall have been advertised for sale, the sale may (if it appears necessary) be postponed for the purpose of making the investi- opportunity gation mentioned in the last preceding rule: provided that no such investigation shall be made if it appear that the making of the claim or objection was designedly and unnecessarily delayed, with a view to obstruct the ends of justice, and in such case the claimant shall be left to prosecute his claim by a regular suit.
4. Sales in Execution of Decrees.*
27. Sales in execution of decrees shall be made under the direc- Sheriff or tion of the Sheriff or the Registrar, as the Court may direct, and shall registrar to be conducted according to such orders, if any, as the Court may make of sales. on the application of any parties concerned, and such sales shall be made by public auction: provided that it shall be competent to the Court to authorise the sale to be made in such other manner as it may deem advisable. Any order relating to sale may be made at the time of issuing a writ of execution or afterwards.
28. Subject to the provisions of the next rule, no sale shall be Notice of made until after at least four days' public notice of the sale, nor in the case of immoveable property until after at least fourteen days' public notice thereof, unless on the consent in writing of the judgment debtor. Whatever notices are made elsewhere, the said notices shall be made in the town or place where the property to be sold is situated; and, if the sale is to take place at any other town or place, the said notices shall also be made at the place of sale.
29. The Court may for any sufficient reason increase the said Court may periods of notice in any case or diminish those periods.
increase or diminish
30. Any person employed to execute an order of sale may be periods of authorised by the Court, if, it thinks fit, to sell any property taken in notice. execution by public auction without the assistance of a licensed May
31. At any time within twenty-one days from the date of the sale licensed of any immoveable property, application may be made to the Court auctioneer. to set aside the sale on the ground of any material irregularity in the Setting aside conduct of the sale, but no sale shall be set aside on the ground of sale for such irregularity unless the applicant shall prove to the satisfaction of irregularity. the Court that he has sustained substantial injury by reason of such irregularity.
32. If no such application as is mentioned in the last preceding When sale rule be made, the sale shall be deemed absolute. If such application becomes be made and the objection be disallowed, the Court shall make an order
*See Sales by Auction Ordinance, No. 2 of 1878, section 30
RULES OF CIVIL PROCEDURE.
Return of deposit or purchase
34. After a sale of immoveable property shall have become purchaser by absolute in manner aforesaid, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he has purchased the right, title, and interest of the judgment debtor in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title, and interest.
Delivery of moveable
in possession of judgment
Property subject to lien.
confirming the sale; and in like manner, if the objection be allowed, the Court shall make an order setting aside the sale for irregularity. 33. Whenever a sale of immoveable property is set aside, the purchaser shall be entitled to receive back any money deposited or paid by him on account of such sale, with or without interest, to be paid by such parties and in such manner as it may appear proper to the Court to direct in each instance.
occupancy of other persons.
Of debts and shares in public companies.
35. Where the property sold shall consist of goods, chattels, or other moveable property in the possession of the judgment debtor, or to the immediate possession of which the judgment debtor is entitled, and of which actual seizure has been made, the property shall be delivered to the purchaser.
Immoveable 37. If the property sold shall consist of a house, land, or other property in immoveable property in the possession of a judgment debtor, or some the possession person on his behalf or of some person claiming under a title created of a judgment debtor. by the judgment debtor subsequently to the attachment of such property, the Court shall, on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land, or other immoveable property may have been sold, or any person whom he may appoint to receive delivery on his behalf, in possession thereof, and, if need be, by removing any person who may refuse to vacate the same.
36. Where the property sold shall consist of goods, chattels, or other moveable property to which the judgment debtor is entitled, subject to a lien or right of any person to the immediate possession thereof, the delivery to the purchaser shall, as far as practicable, be made by the Sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.
38. If the property sold shall consist of a house, land, or other immoveable property in the occupancy of other persons entitled to occupy the same, the Court shall, on the application of the purchaser, order delivery thereof to be made by affixing a copy of the certificate of sale in some conspicuous place on the house, land, or other immoveable property, or in the Supreme Court building.
39. Where the property sold shall consist of debts, not being negotiable instruments, or of shares in any public company or corporation, the Court shall, on the application of the purchaser, make an order prohibiting the creditor from receiving the debts and the debtor from making payment thereof to any person or persons except the purchaser, or prohibiting the person in whose name the shares may be standing, from making any transfer of the shares to any person except the purchaser, or receiving payment of any dividends thereon, and the manager, secretary, or other proper officer of the company or corporation from permitting any such transfer or making any such payment to any person except the purchaser.
40. Where the property sold shall consist of negotiable securities, of which actual seizure has been made, the same shall be delivered to PROCEDURE. the purchaser thereof.
41. If the endorsement, transfer, or conveyance of the party in of negotiable whose name any negotiable security, or any share in a public company or corporation is standing, or in whom any mortgage or equity of redemption shall be vested, shall be required to transfer the same, the Registrar may endorse the security or the certificate of the share, or may execute such other document as may be necessary for transferring the same. The endorsement or execution shall be in the following form, or to the like effect: "A.B., by C.D., Registrar of the Supreme Court of the Gold Coast Colony; in a suit by E.F. versus A.B." Until the transfer of such security or share, the Court may, by order, appoint some person to receive any interest or dividend due thereon, and to sign receipts for the same; and any endorsement made, or document executed, or receipts signed as aforesaid, shall be as valid and effectual for all purposes as if the same had been made or executed or signed by the party himself.
42. If the purchaser of any immoveable property sold in execution Obstructing of a decree shall, notwithstanding the order of the Court, be resisted or purchaser in obstructed in obtaining possession of the property, the provisions contained in the preceding rules of this Order relating to resistance or obstruction to a party in whose favour a suit has been decreed in obtaining possession of the property adjudged to him, shall be applicable in the case of such resistance or obstruction.
Transfer of and shares.
EXECUTION OF DECREES BY IMPRISONMENT.
1. Imprisonment in Ordinary Cases.
1. Where the judgment debtor is committed to prison in execu- Subsistence tion of a decree, the Court shall fix whatever monthly allowance it allowance to shall think sufficient for his subsistence, not exceeding one shilling per prisoners. day, which shall be paid by the execution creditor to the keeper of the prison by monthly payments in advance before the first day of each month, the first payment to be made before the judgment debtor is committed to prison, for such portion of the current month as may remain unexpired: provided that if it shall be proved that any judgment debtor has sufficient means for maintaining himself, it shall be competent for the Court, after hearing such judgment debtor, to order that no subsistence money be allowed.
case of illness.
2. In case of the serious illness of any person imprisoned under a Removal of decree, the Court may, on the certificate of the Colonial Surgeon, make prisoner in an order for the removal of such person to the Government civil hospital, and for his treatment there under custody. The period or such person's stay in hospital shall be counted as part of his term of imprisonment, and his subsistence allowance shall be paid, unless the Court shall see in any case to order otherwise.
3. A judgment debtor shall be released at any time on the decree Release
being fully satisfied, or at the request of the execution creditor, or on his failure to pay the allowance as above directed. No person shall be imprisoned on account of a decree for a longer period than one year, or for a longer period than six months if the decree be for the payment of money not exceeding one hundred pounds, or for a longer period than three months if the decree be for the payment of money not exceeding fifteen pounds.
4. Sums disbursed by an execution creditor for the subsistence of money added a judgment debtor in gaol shall be added to the costs of the decree, and shall be recoverable by the attachment and sale of the property of the judgment debtor, but he shall not be detained in custody or arrested on account of any sums so disbursed.
RULES OF CIVIL PROCEDURE.
Limitations of term of imprisonment.
Application 5. Any person imprisoned under a decree may apply to the Court for discharge. for his discharge. The application shall be accompanied by a full statement and account of all property of whatever nature belonging to the applicant, whether in expectancy or in possession, and whether held exclusively by himself or jointly with others, or by others in trust for him (excepting the necessary wearing apparel of himself and his family and the necessary implements of his trade, if any, to the value of five pounds), and of the places respectively where such property is to be found. The application shall be verified by oath or affidavit.
6. On such application being made, the Court shall cause the execution creditor to be furnished with a copy of the statement and account of the judgment debtor's property, and shall fix a reasonable time within which the execution creditor may cause the whole or any part of such property to be attached and sold, and thereafter shall fix a time for examining and hearing the parties; and if the Court shall be satisfied upon such inquiry (wherein the onus of proof shall be upon the party applying for discharge) that the judgment debtor has made a full surrender and disclosure of his property, and that his inability to satisfy the decree is due to unavoidable misfortune, and that his debt or liability was not contracted in any of the modes set forth in the next following rule, it shall be lawful for the Court to make an order for the liberation of the judgment debtor: provided that it shall be lawful for the Governor in Council at any time, by Order published in the "Gazette," to suspend or restrict the operation of this and the last preceding rule by declaring that they shall not apply in the case of any decrees or class of decrees mentioned in such Order; and such exceptions may be made either in respect of the place or District where the cause of action may have arisen, or in respect of the subject-matter thereof or otherwise, and every such Order may by Order of the Governor in Council be annulled, altered or amended at any time.
Procedure on application for discharge.
Proceedings upon fraud or other misconduct of judgment
2. Misconduct of Judgment Debtor.
7. If a party summoned as a judgment debtor shall not attend as required by the summons, and shall not excuse his non-attendance to the satisfaction of the Court, or shall refuse to be sworn or to disclose the matters on which he shall be examined, or shall not answer to the satisfaction of the Court, or if it appears to the Court by any examination of a judgment debtor or other evidence
(1.) That the judgment debtor has then or has had since the making of the decree sufficient means to pay the money directed to be paid by him, or part thereof, and he refuses or neglects to pay the same; or
RULES OF CIVIL PROCEDURE. Refusal to
(2.) That with intent to defraud or delay his creditors, or any of satisfy them, he has made or suffered any gift, delivery or transfer judgment. of any property, or removed property from the jurisdic- disposition. tion of the Court making the decree, or of the Supreme Court; or
(3.) That the debt or liability in respect of which the decree has Debt conbeen made has been contracted or incurred by him by fraud tracted by or false pretence or breach of trust committed by him, or by fraud, &c. reason of any damages which he has been adjudged to pay on account of any assault or slander committed by him; or (4.) That forbearance of the debt was obtained by him by fraud Forbearance obtained by
or false pretence; or
(5.) That the debt or liability was wilfully contracted or incurred Debt by him without his having at the same time a reasonable recklessly expectation of being able to pay or discharge it; or (6.) That the judgment debtor under a decree, other than for the Disobedience payment of money, has then or has had since the making of the decree the power of complying with the decree, and has refused or neglected to do so;
other than for money.
then and in any such case the Court may issue a warrant for the arrest of such judgment debtor and his detention in custody, or for his detention, if already in custody, until further order, or, if it thinks fit, may make an order calling upon such judgment debtor to show cause why he should not be punished for his misconduct.
8. If such judgment debtor is arrested or in custody, he shall be Party brought before the Court on the first convenient opportunity, and default to be brought shall then, or if an order to show cause as aforesaid has been made, he before the shall, on appearing on the return-day of the order, have opportunity Court. of showing cause why he should not be punished.
9. If such judgment debtor does not show cause to the satisfac- Commitment tion of the Court why he should not be punished, or if, being ordered of party in default. to show cause as aforesaid, he does not attend the Court and does not establish sufficient reason for not attending, the Court may remand the judgment debtor to prison if he has been already arrested, or issue Form 49. a warrant for his arrest and commitment as for a contempt of Court.
10. The Court may enlarge the time for return to the order, and Enlargement may direct that the warrant shall only issue after a certain time, and of time and in the event of the continued refusal or neglect of the judgment debtor conditional at that time to comply with the decree.
11. A person committed on account of any misconduct enumerated Penalty on in the first five clauses of rule seventh, may be committed for any of misconduct of judgment the periods limited for the continuance of imprisonment under the debtor. third rule of this Order, and for any period in addition to the period of six or of three months not exceeding six months. Upon such person satisfying the decree, or upon the request of the execution creditor, it shall be lawful for the Court to make an order for the liberation of the person so imprisoned, to take effect either immediately or after he has been imprisoned for such portion of the term of im