MODES OF EXECUTION Flashcards
What are the four important statutes when it comes to execution?
STATUTORY PROVISION STATES
Section 38, Civil Procedure Act
Subject to such conditions and limitations as may be prescribed, the court may, on the application of
the decree-holder, order the execution of the decree by delivery of any property specifically decreed
Order 22, Rule 27, Civil Procedure Rules
Where a decree is for a specific moveable property 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 whom it has been adjudge or to a person as he appoints to receive delivery on his behalf or by
detention in prison of the judgment-debtor or attachment of his property or both
Order 22, Rule 27(2), Civil Procedure Rules
Where an attachment has remained in force for a period of six months and the judgment debtor has not obeyed the decree, and the decree-holder has applied for sale of the attached property, it may be sold and the proceeds of sale awarded to the decree holder. This applies in instances where there is an
amount fixed by the decree to be paid as an alternative to the delivery of the moveable property. In other cases, the court will award compensation as it deems fit.The balance of the proceeds after payment has been made to the decree holder will be paid to the judgment debtor on his application.
Order 22, Rule 27(3), Civil Procedure Rules
Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he
is bound to pay, or where at the end of six months from the date of attachment and no application for
sale of the attached property has been made, or if made has been refused, the attachment shall cease
What are the two processes involved when it comes to attachment of immovable property?
(i) Attachment of the immoveable property; and
(ii) Sale of the immoveable property
What are the three rules under statute when it comes to attachment of immovable property?
CPR PROVISION WHAT IT STATES
Order 22, Rule 48 (i) Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment
shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property
(ii) A copy of the order shall be affixed on a conspicuous part of the property Order 22, Rule 9 & 10 An application for the attachment of any immoveable property should contain:
* A description of the property;
* A specification of the JD’s share or interest in the property to the best of their belief and so
far as he can ascertain;
* And, in some instances, the court may require the applicant to produce a certified extract of
the title document from the Land Registrar showing the proprietors of the land and their registered shares or interests. If these requirements are not complied with, the court may reject the application or allow the defect to be remedied.
Order 22, Rule 13 Where the court is satisfied, it will admit the application and will order execution of the decree according to the nature of the application
What is the procedure for Sale of attached property?
- A decree holder may make an application for the sale of attached immoveable property in Form No. 14, Appendix A, Civil Procedure Rules 2010
- Once the property is sold, the proceeds of sale are paid to the decree-holder and if there is any balance, the same is paid to the JD
