47. Writs of Seizure and Sale.
order 47
Writs of Seizure and Sale
1. Power to stay execution by writ of seizure and sale. (O. 47 r. 1)
(1) 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 at any time thereafter, by the judgment debtor or other party liable to execution–
(a) that there are special circumstances which render it inexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay the money,
then, notwithstanding anything in rule 2 or 3, 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.
(2) An application under this rule, if not made at the time the judgment is given or order made, must be made by summons and may be so made notwithstanding that the party liable to execution did not enter an appearance in the action.
(3) An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.
(4) The summons and a copy of the supporting affidavit must, not less than 4 clear days before the return day, be served on the party entitled to enforce the judgment or order.
(5) An order staying execution under this rule may be varied or revoked by a subsequent order.
2. Separate writs to enforce payment of costs, etc. (O. 47 r. 2)
(1) Where only the payment of money, together with costs to be taxed, is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been taxed, the party entitled to enforce that judgment or order may issue a writ of seizure and sale to enforce the judgment or order and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the taxed costs.
(2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of seizure and sale to enforce payment of any damages or costs awarded to him by that judgment or order.
3. Where landlord claims arrears of rent of premises where property seized. (O. 47 r. 3)
(1) Where the landlord or any other person entitled to receive the rent of the premises in which any movable property has been seized by the sheriff has any claim for arrears of rent of those premises, he may apply to the Registrar, at any time before the sale of such property, for a writ of distress for recovery of such arrears of rent.
(2) When a writ of distress has been issued the provisions of section 20 of the Distress Act, 1951 (Act 255) shall apply.
(3) Unless a writ of distress is issued for the recovery of such arrears of rent the property seized by the sheriff shall be deemed not to be liable to be seized under a writ of distress and to be free from all claims in respect of rent and may be dealt with accordingly and the landlord or other person entitled to receive rent as aforesaid, shall have no claim in respect of the property or to the proceeds of sale or any part thereof.
4. After seizure, dealings with property void. (O. 47 r. 4)
After seizure has been made of the judgment debtor’s movable property under a writ of seizure and sale, and during the continuance of the seizure, otherwise than by the leave of the Court, any alienation of the property seized, whether by sale, gift, mortgage or otherwise, shall be void against the sheriff and any person on whose behalf the movable property was seized.
5. Withdrawal and suspension of writ. (O. 47 r. 5)
(1) Where any execution creditor requests the sheriff to withdraw the seizure, he shall be deemed to have abandoned the execution, and the sheriff shall mark the writ of seizure and sale as withdrawn by request of the execution creditor:
Provided that where the request is made in consequence of a claim having been made in an interpleader proceedings, the execution shall be deemed to be abandoned in respect only of the property so claimed.
(2) A writ of seizure and sale which has been withdrawn under this rule shall not be re-issued but the execution creditor may apply by summons supported by affidavit stating the grounds of the application for a fresh writ of seizure and sale to be issued, and such writ shall take priority according to its date of issue.
6. Immovable property. (O. 47 r. 6)
Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:
(1) Seizure shall be made by an order prohibiting the judgment-debtor from transferring, charging or leasing such property or interest. For the purpose of this rule "charging" shall include the creation of a lien by deposit of a document of title;
(2) A copy of the order shall be served on the judgment-debtor and one or more copies, as the case may require, shall be issued to the judgment-creditor in order that he may present the same, in compliance with the provisions of any written law relating to such land, for registration at the Registry of Titles or Land Office whereat the land or interest in land specified in such order is registered;
(3) No prohibitory order issued under this rule shall affect any immovable property or registered interest therein and no immovable property or registered interest therein shall be deemed to have been seized until such prohibitory order shall have been registered as provided by any written law relating to such land;
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitory order shall upon the expiration of six months from the date thereof cease to affect the immovable property or registered interest therein specified in such order;
(5) Upon the application of any judgment-creditor on whose application a prohibitory order has been issued the Court or Judge, if it or he considers that special circumstances render an extension just, may from time to time by order extend the period of six months referred to in sub-rule (4), for any period not exceeding six months, provided that no order made under this rule shall have any force or effect unless it is presented for registration at the Land Office or Registry of Titles before the expiration of the prohibitory order which such order purports to extend;
(6) The provisions of sub-rule (2) shall apply to orders made under sub-rule (5) of this rule;
(7) When a judgment-creditor has obtained in any suit or proceeding a prohibitory order, in execution of an order or judgment in such suit or proceeding, affecting any immovable property or registered interest therein, no further prohibitory order affecting the same property or interest shall be made in the same suit or proceeding in execution of the same order or judgment on the application of such judgment-creditor or of any other person unless the Court or a Judge shall by order otherwise direct, on the ground of the existence of special circumstances;
(8) A copy of every order made under this rule shall be sent by the Court making the order to the Registrar of Titles of a State or to the Collector of Land Revenue of the District wherein the land affected is situate or to both as may be necessary.
7. Sale of immovable property. (O. 47 r. 7)
Sale of immovable property, or any interest therein, shall be subject to the following conditions:
(a) There shall be no sale until the expiration of fourteen days from the registration of the prohibitory order under rule 6(3) of this Order; [Added: P.U. (A) 332/181]
(b) The particulars and conditions shall be drawn up by the sheriff or by his solicitor, and shall be submitted for the approval of a Judge. At least two clear days’ notice in writing of an appointment to obtain the approval of the Judge shall be served on the judgment creditor and judgment debtor at their addresses for service respectively, unless the Judge shall in any case otherwise order;
(c) The judgment debtor may apply by summons to a Judge for postponement of the sale in order that he may raise the amount leviable under the writ by charge or lease, or sale of a portion only, of the immovable property seized, or by sale of any other property of the judgment debtor, or otherwise, and the Judge, if satisfied that there is reasonable ground to believe that the said amount may be raised in any such manner, may postpone the sale for such period and on such terms as are just;
(d) The judgment creditor may apply to a Judge for the appointment of a receiver of the rents and profits, or a receiver and manager of the immovable property, in lieu of sale thereof, and on such application the Judge may appoint such receiver or receiver and manager, and give all necessary directions in respect of such rents and profits or immovable property;
(e) Where immovable property or any registered interest therein has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court or a Judge to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court or a Judge is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud;
(f) The purchaser at any such sale in execution of a decree may apply to the Court or a Judge to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold;
(g) (i) Where no application is made under paragraph (e) or (f) or where such application is made and disallowed, the Court or a Judge shall make an order confirming the sale, and thereupon the sale shall become absolute: provided that no such order shall be made until after the expiration of one month from the date of the sale;
(ii) Where such application is made and allowed, the Court or a Judge shall make an order setting aside the sale:
Provided that no order shall be made unless notice or the application has been given to all persons affected thereby;
(iii) No suit to set aside an order made under this paragraph shall be brought by any person against whom such order is made;
(h) (i) Where a sale is set aside under paragraph (g), the purchaser shall be entitled to an Order for repayment of his purchase-money (with or without interest as the Court or a Judge may direct) against any person to whom it has been paid;
(ii) The re-payment of the said purchase-money and of the interest (if any) allowed by the Court or a Judge may be enforced against such person under the provisions of this rule relating to the execution of a decree for the payment of money;
(i) (i) Every order under paragraph (g) shall contain a sufficient description of the property or interest sold and the name of the purchaser and shall further declare that the title of the property sold shall vest in such purchaser upon registration of such order under the provisions of any written law relating to such land, and not before;
(ii) A copy of any such order shall be issued to the purchaser in order that he may present the same for registration under the provisions of any written law relating to such land;
(iii) Every such order shall for the purposes of the Stamp Ordinance 1949 be deemed to be, and shall be stamped by the purchaser as, a conveyance.
order 47
Writs of Seizure and Sale
1. Power to stay execution by writ of seizure and sale. (O. 47 r. 1)
(1) 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 at any time thereafter, by the judgment debtor or other party liable to execution–
(a) that there are special circumstances which render it inexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay the money,
then, notwithstanding anything in rule 2 or 3, 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.
(2) An application under this rule, if not made at the time the judgment is given or order made, must be made by summons and may be so made notwithstanding that the party liable to execution did not enter an appearance in the action.
(3) An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.
(4) The summons and a copy of the supporting affidavit must, not less than 4 clear days before the return day, be served on the party entitled to enforce the judgment or order.
(5) An order staying execution under this rule may be varied or revoked by a subsequent order.
2. Separate writs to enforce payment of costs, etc. (O. 47 r. 2)
(1) Where only the payment of money, together with costs to be taxed, is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been taxed, the party entitled to enforce that judgment or order may issue a writ of seizure and sale to enforce the judgment or order and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the taxed costs.
(2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of seizure and sale to enforce payment of any damages or costs awarded to him by that judgment or order.
3. Where landlord claims arrears of rent of premises where property seized. (O. 47 r. 3)
(1) Where the landlord or any other person entitled to receive the rent of the premises in which any movable property has been seized by the sheriff has any claim for arrears of rent of those premises, he may apply to the Registrar, at any time before the sale of such property, for a writ of distress for recovery of such arrears of rent.
(2) When a writ of distress has been issued the provisions of section 20 of the Distress Act, 1951 (Act 255) shall apply.
(3) Unless a writ of distress is issued for the recovery of such arrears of rent the property seized by the sheriff shall be deemed not to be liable to be seized under a writ of distress and to be free from all claims in respect of rent and may be dealt with accordingly and the landlord or other person entitled to receive rent as aforesaid, shall have no claim in respect of the property or to the proceeds of sale or any part thereof.
4. After seizure, dealings with property void. (O. 47 r. 4)
After seizure has been made of the judgment debtor’s movable property under a writ of seizure and sale, and during the continuance of the seizure, otherwise than by the leave of the Court, any alienation of the property seized, whether by sale, gift, mortgage or otherwise, shall be void against the sheriff and any person on whose behalf the movable property was seized.
5. Withdrawal and suspension of writ. (O. 47 r. 5)
(1) Where any execution creditor requests the sheriff to withdraw the seizure, he shall be deemed to have abandoned the execution, and the sheriff shall mark the writ of seizure and sale as withdrawn by request of the execution creditor:
Provided that where the request is made in consequence of a claim having been made in an interpleader proceedings, the execution shall be deemed to be abandoned in respect only of the property so claimed.
(2) A writ of seizure and sale which has been withdrawn under this rule shall not be re-issued but the execution creditor may apply by summons supported by affidavit stating the grounds of the application for a fresh writ of seizure and sale to be issued, and such writ shall take priority according to its date of issue.
6. Immovable property. (O. 47 r. 6)
Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:
(1) Seizure shall be made by an order prohibiting the judgment-debtor from transferring, charging or leasing such property or interest. For the purpose of this rule "charging" shall include the creation of a lien by deposit of a document of title;
(2) A copy of the order shall be served on the judgment-debtor and one or more copies, as the case may require, shall be issued to the judgment-creditor in order that he may present the same, in compliance with the provisions of any written law relating to such land, for registration at the Registry of Titles or Land Office whereat the land or interest in land specified in such order is registered;
(3) No prohibitory order issued under this rule shall affect any immovable property or registered interest therein and no immovable property or registered interest therein shall be deemed to have been seized until such prohibitory order shall have been registered as provided by any written law relating to such land;
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitory order shall upon the expiration of six months from the date thereof cease to affect the immovable property or registered interest therein specified in such order;
(5) Upon the application of any judgment-creditor on whose application a prohibitory order has been issued the Court or Judge, if it or he considers that special circumstances render an extension just, may from time to time by order extend the period of six months referred to in sub-rule (4), for any period not exceeding six months, provided that no order made under this rule shall have any force or effect unless it is presented for registration at the Land Office or Registry of Titles before the expiration of the prohibitory order which such order purports to extend;
(6) The provisions of sub-rule (2) shall apply to orders made under sub-rule (5) of this rule;
(7) When a judgment-creditor has obtained in any suit or proceeding a prohibitory order, in execution of an order or judgment in such suit or proceeding, affecting any immovable property or registered interest therein, no further prohibitory order affecting the same property or interest shall be made in the same suit or proceeding in execution of the same order or judgment on the application of such judgment-creditor or of any other person unless the Court or a Judge shall by order otherwise direct, on the ground of the existence of special circumstances;
(8) A copy of every order made under this rule shall be sent by the Court making the order to the Registrar of Titles of a State or to the Collector of Land Revenue of the District wherein the land affected is situate or to both as may be necessary.
7. Sale of immovable property. (O. 47 r. 7)
Sale of immovable property, or any interest therein, shall be subject to the following conditions:
(a) There shall be no sale until the expiration of fourteen days from the registration of the prohibitory order under rule 6(3) of this Order; [Added: P.U. (A) 332/181]
(b) The particulars and conditions shall be drawn up by the sheriff or by his solicitor, and shall be submitted for the approval of a Judge. At least two clear days’ notice in writing of an appointment to obtain the approval of the Judge shall be served on the judgment creditor and judgment debtor at their addresses for service respectively, unless the Judge shall in any case otherwise order;
(c) The judgment debtor may apply by summons to a Judge for postponement of the sale in order that he may raise the amount leviable under the writ by charge or lease, or sale of a portion only, of the immovable property seized, or by sale of any other property of the judgment debtor, or otherwise, and the Judge, if satisfied that there is reasonable ground to believe that the said amount may be raised in any such manner, may postpone the sale for such period and on such terms as are just;
(d) The judgment creditor may apply to a Judge for the appointment of a receiver of the rents and profits, or a receiver and manager of the immovable property, in lieu of sale thereof, and on such application the Judge may appoint such receiver or receiver and manager, and give all necessary directions in respect of such rents and profits or immovable property;
(e) Where immovable property or any registered interest therein has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court or a Judge to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court or a Judge is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud;
(f) The purchaser at any such sale in execution of a decree may apply to the Court or a Judge to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold;
(g) (i) Where no application is made under paragraph (e) or (f) or where such application is made and disallowed, the Court or a Judge shall make an order confirming the sale, and thereupon the sale shall become absolute: provided that no such order shall be made until after the expiration of one month from the date of the sale;
(ii) Where such application is made and allowed, the Court or a Judge shall make an order setting aside the sale:
Provided that no order shall be made unless notice or the application has been given to all persons affected thereby;
(iii) No suit to set aside an order made under this paragraph shall be brought by any person against whom such order is made;
(h) (i) Where a sale is set aside under paragraph (g), the purchaser shall be entitled to an Order for repayment of his purchase-money (with or without interest as the Court or a Judge may direct) against any person to whom it has been paid;
(ii) The re-payment of the said purchase-money and of the interest (if any) allowed by the Court or a Judge may be enforced against such person under the provisions of this rule relating to the execution of a decree for the payment of money;
(i) (i) Every order under paragraph (g) shall contain a sufficient description of the property or interest sold and the name of the purchaser and shall further declare that the title of the property sold shall vest in such purchaser upon registration of such order under the provisions of any written law relating to such land, and not before;
(ii) A copy of any such order shall be issued to the purchaser in order that he may present the same for registration under the provisions of any written law relating to such land;
(iii) Every such order shall for the purposes of the Stamp Ordinance 1949 be deemed to be, and shall be stamped by the purchaser as, a conveyance.
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