Enforcement of judgements and orders

ENFORCEMENT OF JUDGEMENTS AND ORDERS
1. Execution and enforcement of judgment and order
 The term of execution and enforcement are interchangeable words.
 It refers to the manner in which a litigant can compel the obedience of the judgment or
order against the other party.
 The world execution is normally used in a restrictive sense to denote the enforcement of
judgment or order by way of writs execution, such as writ of seizure and sale , writ of
possession and writ of delivery.
 Generally writ of execution is a written command by the court to the sheriff directing him
to execute the judgment of the court.
 O46 R 6 : A writ of execution is valid for 12 months and its validity may be extended by
the court upon application for a period of 12 months from time to time.
2. Writ of seizure and sale
 Form commands the sheriff to seize and sell the property of judgment debtor to such an
extent as it necessary to satisfy the judgment sum.
 O47 r4: After the seizure has been made by the sheriff and during the continuation of the
seizure any alienation of the property by the judgment or otherwise, shall be void against
the sheriff and any person on whose behalf the movable property was seized.
 It is wrongful to issue a writ of seizure and sale after due payment of judgment sum and
ignorance of the payment is no defence.
 Cubitt v Gamble – the person who issued the writ will be liable in trespass.
 Prohibitory order
o Where the property to be seized consists of immovable property or any
registered interest therein, then the seizure must be made an by an order
prohibiting the judgment debtor from transferring from transferring, charging or
leasing such property or interest.
o A copy of the prohibitory order must be serve on the judgment debtor and
registered at the Registry of Titles or Land office.
o 047 r 6 : Once the prohibitory order shall be valid for six months from the date of
the registration, unless renewed by an order of court and registered at the Land
office or Registry of Titles, before the expiration of the prohibitory order.
 There shall be no sale of the immovable property or any interest therein until the
expiration of 14 days from the registration of the prohibitory order.
 The condition of sale may be drawn up by the sheriff or by the solicitors and must be
approved by the judge.
 The judgment debtor may apply to a judge for a postponement of the sale on the
grounds that he can raise the judgment sum.
 The court may postpone the sale for such period and on such terms as are just.
 The judgment creditor can also apply for a receiver to be appointed to receive the rents
and profits until the sale or in lieu of the sale.

 Any person whose interests are affected may apply to the court to set aside the sale on
the ground of a material irregularity fraud in publishing or conducting the sale.
 However, no sale shall be set aside on the ground of irregularity or fraud unless upon
the facts, the court is satisfied that the applicant has sustained substantial injury by
reason of such irregularity by reason of such irregularities or fraud.
Perwira Affin Bank Berhad v Ahmad Tajudin –
3. Stay of Execution
 Where a judgment is given or an order made for the payment by any person of money,
and the court is satisfied on an application made at the time of the judgment or order, or
any time thereafter, by the judgment debtor, or other party liable to execution, the court
may by order stay the execution of the judgment or order by writ of seizure and sale
either absolutely or for such period and subject to such conditions as the court thinks fit.
For the stay of execution to be granted the applicant must satisfy the court:
o There are special circumstances which render it inexpedient to enforced the
judgment or order
o The applicant is unable from any cause to pay the money
 Appeal does not operate as a stay of execution
 Where a judgment has been obtained in a subordinate court, an application for stay of
execution must first be filed in the subordinate court in which the judgment or order was
made. If stay is not granted, the applicant should not appeal but must file an application
for stay in the High Court pursuant to Order 55 r16
Shanmugam Pillai v Panjali: where a subordinate court has refused an application for a stay
of execution pending appeal, an appeal against that refusal is not authorised by any rule of
procedure and therefore is an illegality which is not curable.
 The application for stay from the decision of the Hc must be made by application
supported by an affidavit made by or on behalf of the applicant supported by an affidavit
made by or on behalf of the applicant stating the grounds of the applicant. Where the
application is made on the grounds of the applicants inability to pay, the application must
disclosed his income, the nature and value of any property of his and the amount of any
other liabilities of his.
 The application and the supporting affidavit must be served on the judgment creditor, not
less than 4 clears day, before the hearing date of application.
 047 r 1 : An order for stay of execution may be varied or revoked by subsequent order.
DEBTORS ACT
WRIT OF POSSESSION
 Judgments or order for the delivery of possession of land may be enforced by a writ of
possession or in a case in which Order 45 R5 applies, by an order of committal. ‘

 The writ of possession in Form 90, commands the sheriff to enter into the land and take
possession of the immovable property.
 The writ may include provision for enforcing the payment of money, usually rental
arrears and legal cost and for that purpose the writ will command seizure and sale of any
movable property of the defendant to satisfy the party of the monetary judgment.
 O45 r 3 (3) : A writ of possession for immovable property cannot be issued without
leave of court except where the judgment or order was given or made in a charge action
to which Order 83 applies.
 Such leave shall not be granted unless it is shown that every person in actual
possession of the whole or any part of the immovable property has received such notice
of the proceddings as appears to the court sufficient.
Manchester Corporation v Connolly – a leave to issue a writ of possession cannot be given
on an interlocutory motion or summons but only to enforce a final judgment for possession. To
enforced a judgment for possession of land, it is mandatory to serve the judgment or order
endorsed with a notice in the prescribed Form informing him that if he neglects to obey the order
within the time specified, he will be liable to process of execution to compel him to do so .
O 45 r (6) – at the time the judgment was obtained if time was not specified, application can be
made to the court for an order requiring the act to be done within such time after service of the
order.
Aglionby v Cohen : at common law, a person is entitle to use so much force as is necessary to
obtain possession after having obtained a judgment or order for possession.
 In Malaysia, the right to possession of immovable property is govern by section 7 and 8
of the Specific Relief Act and it would appear that the judgment creditor is not entitle to
take possession until put possession by sheriff.
WRIT OF DELIVERY
 A judgment or order for delivery of any goods may be enforced by writ of delivery.
 Judgment or order for the delivery of any goods which does not give the person against
whom it is given or made, the alternative of paying the assessed value of the goods,
may be enforced by a writ of specific delivery.
 Where there is an alternative, leave to issue the writ is not required.
 A writ of delivery and a writ of specific delivery may include provision for enforcing the
payment of any money adjudged or ordered to be paid by the judgment or order which is
to be enforced by the writ.
Hymas v Ogden : A writ of delivery in the prescribe Form, commands the sherrif to seize and
deliver the property or the specific property as the case may be to the judgment creditor.

GENERAL RULES IN RESPECT OF WRIT OF EXECUTION
 A writ of execution to enforced judgment or order may not be issued without leave of the
court in the following case:
o 6 years or more have lapsed since the date of the judgment or order.
o Any change has taken place whether by death or otherwise, in the parties
entitled or liable to execution under the judgment
o Judgment or order is against the assets of a deceased person coming to the
hands of his executor or administrator after the date of the judgment or order,
and it is sought to issue execution against such assets.
o Under the judgment or order any person is entitle to relief subject to the
fulfillment of any condition which it is alleged has been fulfilled
o Where any movable property sough to be seized under a writ of execution are in
the hands of a receiver appointed by the court.
Tio Chee Hing v Chung Khiaw Bank: an appeal from the decision of the judge to grant leave
to issue execution against the appellant on 2 judgment entered more than 6 years ago. Court
has discretion in the matter and may exercise its discretion in favour of the applicant if satisfied
that he is entitle to issue execution and with the cause of the delay.
 However, there may be other provisions in any written law or rules which may require
leave to issue the writ of execution.
 The writ must be issued within 1 year from the date leave was granted. Failing which the
order shall ceased to have effect, unless fresh order is made.
 O46 r 3 : an application for leave to issue a writ of execution may be made ex parte
application in the prescribed Form supported by an affidavit setting out the grounds.
 Writ of execution is issued by an Officer of the Registry. Before the writ is issued a
praecipe in the prescribe form must be signed by the applicant or his solicitors and field
with (see O46 R5).
 The writ of execution is valid for twelve months from the date of issues unless extended
by court.
 May be executed between 9 am and 4 pm unless the sheriff otherwise orders.
 Once the goods have been seized, a notice of seizure in the prescribed form must be
given to the execution debtor.
ENFORCEMENT OF MONEY JUDGEMENT
 Other than writ of seizure and sale, money judgments can be enforced by:
1) GARNISHEE PROCEEDINGS
 Where 3rd
parties owes money to the judgment debtor, then the judgments debtor can
apply to the court seeking an order from the court that the 3rd
party pay directly sum
owing to the judgement debtor to the judgment creditor.
 A proceedings to compel the 3rd
party to pay the money directly to the judgment creditor.

 Commence by obtaining an order in the form to show cause, which is an order to the
garnishee to appear before the court to show cause why he should not pay the judgment
creditor the debt due from the him to the judgment debtor.
 The order specifies the time and place for further consideration of the matter, and in the
meantime attaches the debt.
 Ex parte application supported by affidavit in the prescribed form stating the judgment to
be enforced and the amount remaining unpaid. It must also state that to the best of the
garnishors belief that the garnishee is within the jurisdiction and is indebted to the
judgment debtors and stating the source of the garnishor’s information, or grounds for
his believe.
 An order to show cause must be serve on the garnishee personally at least seven days
before the time appointed thereby for the further consideration of the matter.
 The order also must be served on the judgment debtor unless the court otherwise
orders.
 Such an order will bind the garnishee from the time of service. An order absolute in the
prescribed form shall be made if the garnishee does not attend court for further
consideration or dispute the debt or claimed to be due from him to the judgment debtor.
 The making of the garnishment order is at the discretion of the court which ought to be
exercised on established ground.
Saw swan Kee v sim Lim Finance Bhd : the garnishee after an order nisi was made, was
allowed to argue that the order nisi should not be made absolute on the ground that a debt
is due from the judgment debtor. It was stated that a garnishee cannot set – off against the
debt attached, a debt owing to him from the judgment creditor but he can avail himself of a
set off against the judgment debtor, which existed when the order nisi was made.
Tay Way Boon v Omar Marican Holdings Sdn Bhd : a garnishee cannot attach a debt
which had been equitable assigned. An order absolute the garnishee may be enforced in the
same manner as any other order for the payment of the money. Any payment by the
garnishee may be enforced in the same manner as any other order for the payment of
money. 049 r 8 : Any payment by the garnishee in compliance with the order shall be a valid
discharge of his liability to the judgment debtor notwithstanding that the garnishee
proceedings are subsequently set aside or the judgment from which they arose is reversed.
 O49 r9, r 5, r 6
 O49 does not apply to the gov.
 If a garnishee disputes the debt owing to the judgment debtor, then the court may
not order the garnishee order to be made absolute.
CHARGING ORDERS TO STOP ORDER
 50 r 2 provides for the enforcement of judgment or order by imposing a charge in
the securities to which the judgment debtor is beneficially entitle entitled to.

 Ex parte application supported by affidavit identifying the judgment to be enforced
and showing that the applicant is entitle to enforced the judgment.
 05 r 3
 The order if granted shall in the first instance be an order to show cause, in the
prescribe form specifying the time and place for further consideration of the matter
and imposing the charge until that time in any event.
 The securities to which the rule applies are:
o Any gov stock and any stock of any company
o Any dividend of or interest payable on such stock.
 A copy of the order to show cause must be serve on the judgment debtor at least
seven days before the return date, appointed thereby for the further consideration of
that matter.
 050 r 4
 The effect of the service of the order is to prevent any disposition of the security by
the judgment debtor or to prevent any payment of any dividend thereon without the
court’s authority.
 On the date appointed for the further consideration of the matter, the court shall
unless it appears that there is sufficient cause to the contrary, make the order
absolute with or without modifications.
 A judgment creditor only can enforce the charge only 6 months after the date to
show cause was made.
 Any interested person may make an application to the court before or after the
order is made absolute to discharge or vary the order on such terms as the court
thinks fit
Widgery v Tepper – charging order on securities can only ve obtained on an ascertain sum.
 Under order 50 r 10, there are provision for a person, claiming to be beneficially
entitle to an interest in any securities and who wishes to be notified of any proposed
transfer of payment to issue “stop notice”.
 The effect of the issue and service of the stop notice is by filing an affidavit in
registry identifying the securities in question and describing his interest therein and
filing by the deponent and satisfying other requirements under this rule.
 The court may in the prescribed form prohibit the Accountant – General as the case
may be from paying any dividend thereof or interest thereon.
APPOINTMENT OF RECEIVER (O51)
 For the enforcement of judgment to appointed a receiver, to receive the income of the
judgment debtor’s property and pay it to the judgment creditor in satisfaction of the
judgment.

 Registrar under O51 r 2 has the power to make an order for the appointment of a
receiver by way of equitable execution and grant in injunction to restrain the judgment
debtor from dealing with the income.
 030
 The court in determining whether it is just or convenient that appointment should be
made shall have regard to the amount claimed by the judgment creditor and to the
amount likely to be obtain by the receiver and to the probable costs of his appointment
and may direct an inquiry on any of these matter before making the appointment
 O51A
 The question whether leave was required to sue a receiver was considered in the case
of Re Haji Mohamed Eusuff : there appears to be no statutory provision which requires
a party to obtain the leave of the court to sue a receiver, as the receiver is an officer of
the court. However, in practice, permission of the of the court is necessary to warrant an
action against him.
Matang Holding Bhd v Dato Lee San Choon : the principle to be applied in dealing with an
application for the appointment of a receiver. The court held that it must be satisfied that:
a) There is a good prima facie claim of title by the pf
b) The property is in jeopardy
c) The applicant will be in a worse situation if the appointment of receiver is delayed.

OTHERS MODES OF ENFORCEMENT
1) COMMITAL
 Available when a person disobeys the judgment or order of the court
 To punish for contempt of court
2) JUDGMENT DEBTOR SUMMONS
 Section 4 of the Debtor Ordinance provides for the issue of summons by the judgment
creditor against the judgment debtor for the purpose of bringing the judgment debtor to
court and orally examine him of his ability to pay or to satisfy the judgment debt and to
discover under oath the whereabouts of his property.
 This summons to bring the judgment debtor to court for examination under oath is called
judgment debtors summons.
Republic of Costa Rica v Strausberg – examination under this rule is not intended to be an
examining but a cross - examination of the severest kind. It is not confined to answering the
simple questions, what debts are owing but the debtor must answer all questions ‘fairly
pertinent and properly asked’ with a view to ascertaining what debts are owing to him and
from whom they are due and must give all necessary particulars to enable the plaintiff to recover
under a garnishee order.

 If the JD is a corporation, an officer of the corporation can be summoned to be
examined on oath.
 The officer shall also be called to produce all books, paper or documents in his
possession or power relating to such property.
 Further, the judgment creditor can subpoena any person as a witness whom he
considers is likely to be able to supply information in respect of the judgment debtor’s
ability to pay the judgment debt or in respect of his property.
 If the JD does not appear after the summons have been duly serve, the court may issue
a warrant of arrest against the JD to bring him before the court to be examined or make
an order against the JD ex parte .
 The order may require the JD to pay the judgment sum forthwith or in installment at such
times as the court may fix.
 If JD defaults, he may be brought to court to show cause, why he should not be
committed to prison for such default.
 The notice to show cause must be personally serve and if no sufficient cause is shown
by the judgment debtor, the court may commit him to the civil prison for a term which
may extend to 6 weeks or until earlier payment of any installment due.
Procedure
 Set out in O48
3) WRIT OF DISTRESS
 Distress is a common law right of the landlord, now regulated by statute to seize his
tenant’s goods and chattels in a non judicial proceeding to satisfy arrears of rent.
 Not strictly a mode of enforcement of judgment. However, it is a procedure for immediate
and efficient recovery of rental arrears.
 Can be resorted by the landlord against his tenant.
 Section 2 of Distress Act gives a very wide definition of landlord. Landlord means the
lessor or subleast or of any premise , under any lease, sublease, or agreement of
tenancy and includes any person claiming to be entitled in any capacity to receive rents
due under any such lease or agreement.
 Even a chief tenant will come within the definition of landlord when he want to recover
any rental arrears from his subtenant.
 Under the act, distress procedure is only available to recover rental arrears for a period
not exceeding 12 completed months of the tenancy immediately preceding the date of
application for distress.
 In situation where rental arrears is for more than 12 months than it will be only
appropriate to split the claim and go for distress for the last 12 months and the balance
arrears to be claimed by way or writ of summons in the HC or summons in the
subordinate courts as the case may be.

 Arrears of rent may be distrained even after the determination of the tenancy, provided
that either the tenant is still in occupation of the premises or any goods of the tenant are
still on the premises.
 Where a right to distrain accrues to person jointly, the judge or registrar may require the
party so applying, to produce a written authority to distrain, signed by the other persons
jointly or together interested with him.
 A warrant of distress is addressed to the sheriff in the prescribed Form, directing him
forthwith to distain any movable property found by him on the premises named therein,
or such part of the property as may I his judgment be sufficient when sold, to realize the
amount of rent therein stated to be due to the applicant, together with such sum as may
be due to the applicant by way of costs and to the sheriff for his fees and expenses.
 The following properties are exempted from seizure, namely:
a) Things in actual use in the hands of a person at the time of the seizure
b) Tools and implements not in use, where there is other movable property in or
upon the houses or premises sufficient to cover the amounts and cost
c) Tenant’s necessary wearing apparel and necessary bedding for himself and
family
d) Goods in the possession of the tenant for the purposed of being carried, wrought,
worked up, or otherwise dealt with in the course of his ordinary trade or business
e) Goods belonging to guess at an inn
f) Goods in the custody of law
g) Property of any gov, property vested in local authority for local authority and
public purposed.
 Immediate after seizing any property under a warrant of distress a warrant to distress,
the sheriff must make an inventory of items seizes and its estimated value and give a
copy to the tenant and inform him that the property will be sold at a time and place after
6 days from the date thereof.
 If the tenant is not there, such notice may be given to any person appearing to be in
occupation thereof, or , if there is no such persons, by posting it in some conspicuous
place thereon.
 Any under tenant or any lodger or any person other than a tenant may apply within 7
days from the date of seizure for discharge or suspension or released of his movable
property if it has been distraint.
 However, the under tenant or lodger or other person aforesaid must satisfy the court that
the immediate tenant has no right or beneficial interest in the said property and also in
the case of an under tenant or lodger unless such under tenant or lodger pays to the
landlord or into court an amount equal to the arrears of rent in respect of which distress
has been levied and also undertakes to pay to the landlord future land, if any, due from
him to the tenant.
 The tenant may also apply within 7 days from the date of seizure to a judge to discharge
or suspend the execution of the warrant, or to release any part of the property seize. The
judge may on such application deal with the matter summarily and may make such
terms as he considers fair as between the parties pending the final determination of the
matter.

 Where the premise is deserted and the rent is in arrears and the tenant has abandoned
of the premises and left no property out of which arrears of rent may be recovered by
distress, a judge may authorize the bailiff to enter on the premises using such force as
may be necessary to effect an entry into any building thereon, and take possession of
the premises.
Chop Chye Hin Chong v Ng Yeok Seng: it was stated that where a writ of distress is regularly
issued, an action for damages for wrongful distress does not lie in the absence of proof of
malice on the aprt of the land lord.
 Procedure
o Ex parte originating summons supported by an affidavit in the prescribed Form.
Where the application is made by a duly authorised agent of the landlord, he
must produced his written authority in the prescribed Form.
o A writ of distress must be in the prescribe form.

Enforcement of judgements and orders

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