EXECUTION OF DECREES AND ORDERS

Question 1

What is execution?

Answer 1

• Execution in the widest sense signifies the enforcement of or giving effect to the judgment or orders of court of law
• Having obtained a judgment in their favour, the successful party may need to consider how such judgment can be enforced

Question 2

(Section 38, Civil Procedure Act) A court will grant a decree in such a manner as the nature of the relief granted may require.

WHAT ARE Examples of executions the court can order?

Answer 2

A court may on the application of the decree holder order execution of the decree:
(i) By delivery of any property specifically decreed
(ii) By attachment and sale or by sale without attachment, of any property
(iii) By attachment of debts
(iv) By arrest and detention in prison of any person
(v) By appointing a receiver

Question 3

In the event a Judgement Debtor dies before execution of the decree?

Answer 3

the holder of the decree may apply to court which
passed it to execute the same against representative of such deceased or against such person who has intermeddled with estate of such deceased

Question 4

CPA PROVISION
Section 30

Answer 4

The decree may be executed by the court that passed the decree or by the court to which it is sent for
execution

Question 5

CPA Section 31

What are the four conditions that must be sastified before a transfer of a decree is allowed?

Answer 5

Upon the application of the decree holder the court that passed the decree may send it to another court
for execution. But there are four conditions that must be satisfied before this transfer is allowed:
(1) If the judgment debtor actually and voluntarily resides or carries on business or works for gain
within the local limits of the jurisdiction of such other court;
(2) If the judgment debtor has no property within the local limits of the jurisdiction of the court
which passed the decree;
(3) Where the decree directs the sale of immovable property situated outside the local limits of the
jurisdiction of the court that passed the decree; or
(4) Where the court that passed the decree considers for any other reason to be recorded that
such other court should execute the decree

Question 6

What should the court sends when it sends a decree for execution by another court? [Order 22, Rule 4, CPR]

Answer 6

(i) A copy of the decree;
(ii) A certificate informing that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court which passed it, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and
(iii) A copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect

Question 7

What is the procedure for execution?

Answer 7

• Under Order 22, Rule 6, CPR, there must be formal application for execution – the court cannot execute a decree on its own motion (i.e. a decree holder must apply for execution, there must be prompting by the decree holder)

Question 8

What should an Execution Application contain?

Answer 8

In tabular format… it should contain the following: (i) Suit number;
(1) Suit number
(2) Parties;
(3) Date of decree;
(4) Whether an appeal is preferred;
(5) Whether any part payment has been effected;
(6) Whether there is a previous application;
(7) The amount due with interest, if any, or other relief granted;
(8) The amount of costs;
(9) The name of the person against whom execution is sought; and
(10) The mode in which assistance of the court is required

Question 9

What is Form 14 of Appendix A?

Answer 9

The application the decree holder must fill either at the court that passed the decree or to the court the decree was sent for execution

Question 10

What happens when a judgement debtor fails to enter appearance or file a defence?

Answer 10

If the judgment debtor fails to enter appearance, or had entered appearance but failed to file a defence and a summary judgment is obtained, then the court will not issue an execution order for payment, attachment or eviction, unless the judgment debtor is given at least 10 days’ notice of the fact that judgment has been entered against them, which notice
shall be attached to the first application of execution

Question 11

NOTICE TO SHOW CAUSE [Order 22, Rule 18, CPR]

Answer 11

• Where an application for execution is made:
  (i) More than a year after the decree was made;
  (ii) Against the legal representative of the party to the decree; and
  (iii) For attachment of salary or allowance of any person, the court executing the decree shall issue a notice to the person against whom the decree has been issued requiring them to show cause, on a date to be fixed, why the decree should not be executed against them.

Question 12

ORDER 22 CPR
Rule 19

Answer 12

Where the person who has been issued such notice does not appear or does not show sufficient cause as
required by the court, the court shall order the decree to be executed

Question 13

Rule 18 & 31 ORDER 22 CPR

Answer 13

In certain cases, before the execution can proceed, notice must be given to the Judgment Debtor to show
cause why one should not proceed with execution;
a) Where the decree is attached to the salary of the Judgment Debtor there must be notice to the
Judgment Debtor to show cause why the decree should not be executed against him or her; (Rule
18)
b) Why one should not be committed to civil jail (Rule 31)

Question 14

When is a Notice to show cause issued?

Answer 14

(i) There has been a change of circumstances, e.g. where the Judgment Debtor is declared bankrupt, then circumstances would change; i.e. the capacity of the Judgment Debtor would have changed and a decree cannot be executed;
(ii) Where the Judgment Debtor dies or is not in existence in the case of a company;
(iii) Where the Judgment Debtor is under receivership; and/or
(iv) Where the circumstances dictate that one must issue notice to show cause

Question 15

(Section 44, CPA)

Answer 15

Where execution is by way of attachment of salary, then the amount attached shall not exceed one third of the salary

Question 16

EXECUTION ON CROSS DECREES [Order 22, Rule 14, CPR]

Answer 16

This is where each party has a decree against the other, and can only occur where the following conditions exist:
(i) The same court receives applications for executions of the cross decrees;
(ii) Each decree is for payment of money;
(iii) Both decrees are capable of execution at the same time and by the same court; and
(iv) The parties have filed the suit in the same capacity of character in the same cases
* If those conditions are satisfied, then the court must record that they are satisfied and that the sums are equal
* If the sums are not equal, then the one with the larger sum will be allowed to execute

Question 17

DECREE FOR PAYMENT OF MONEY [Order 22, Rule 26, CPR]

Answer 17

• Every decree for payment of money may be executed by detention in prison of the judgment debtor or attachment of his
  property, or both
• Under Section 38, CPA, execution by detention in prison shall not be ordered unless, after giving the Judgment Debtor an opportunity to show cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied:
  (i) The Judgment Debtor is with the object of obstructing or delaying execution:
  a. Is likely to abscond or leave local limits;
  b. Has, after institution of the suit in which decree is passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act in bad faith in relation to his property
  (ii) That the Judgment Debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part of it, but refuses or neglects to pay the same; or
  (iii) The decree was for a sum for which the Judgment Debtor was in a fiduciary capacity to account for

Question 18

DECREE FOR SPECIFIC MOVEABLE PROPERTY [Order 22, Rule 27, CPR]

Answer 18

• Where the decree is for a specific moveable or for any share in a specific moveable property, it may be executed by the seizure, where practicable, of the moveable property or share, and delivery of it to the party to whom it has been adjudged, or by arrest and detention of the Judgment Debtor, or attachment of his property, or both
• Under Rule 27(2), where the attachment has remained in force for 6 months if the Judgment Debtor has not obeyed the decree and the Decree Holder has applied for the attached property to be sold, it may be sold and the proceeds of sale awarded to the Decree Holder
• In the case of movable property, normally you will execute by delivering to the person it has been granted, and therefore it will be executed by seizing and delivering that property
• Where the judgment debtor refuses to release that property: you can have them arrested, and other times you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor Vehicles
• This power can only be used where the property is under the possession of the judgment debtor or his agent

Question 19

ATTACHMENT OF IMMOVEABLE PROPERTY[Order 22, Rule 36 – 50, CPR]

Answer 19

Where the property to be attached is agricultural produce, you attach the property by affixing a warrant of attachment in the field where the property is growing or where it is stored or where the Judgment Debtor resides or works for gain
* If the immoveable property involves share of dividend in a company, the court may issue a prohibitory order against the person in whose name the share is registered, which Order prohibits the transfer of the share or receipt of any dividend
on that share
* If the property is moveable in possession of a 3rd Party, attachment is through obtaining a prohibition order against 3rd party
* Where the property is in the possession of the Judgment Debtor, attachment is through registering a prohibitory order against the Judgment Debtor in whose name the property is registered
* The order prohibits the Judgment Debtor or any third party with an interest from transferring or charging the property
* The attachment against immoveable property becomes complete and effective when a copy of the prohibitory order is registered against the title

Question 20

The proper Application process for Stay of Execution should be made under with Order?

Answer 20

Order 42, Rule 6, CPR.
o One can proceed under Rule 7(2), which gives one the authority to invoke the Court of Appeal jurisdiction
o One must first apply to the High Court under Order 42, Rule 6, and when the stay is rejected, one can go straight
to the Court of Appeal under Rule 7(2) to invoke the Court of Appeal jurisdiction to grant the stay
o The second attempt to the Court of Appeal should be under Order 42, Rule 6(1). Going under Rule 7(2) is only an
option when one has not appealed the order in the High Court but is going straight to the Court of Appeal