74. Debtors Act 1957 (Act 256).
ORDER 74
DEBTORS ORDINANCE 1957*
1. Application and interpretation. (O. 74 r. 1)
(1) These rules apply to proceedings under the Debtors Ordinance 1957 subject to the following rules of this Order.
(2) In this Order–
"Ordinance" means the Debtors Ordinance 1957 (71/57);
"judgment" includes any order for the payment of money.
Arrest of Judgment Debtor
2. Application under section 6. (O. 74 r. 2)
An application for an order of arrest under section 6 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
3. Form of order of arrest. (O. 74 r. 3)
An order for arrest under section 6 of the Ordinance must be in Form 178.
4. Conveyance and subsistence money. (O. 74 r. 4)
(1) Before any arrest is made under section 6 of the Ordinance, the judgment creditor must, unless the Registrar otherwise orders, deposit in the Registry a sufficient sum of money to defray the cost of bringing the debtor before the Court and detaining him in custody pending his appearance.
(2) Before an order of commitment made under of Ordinance is executed, the judgment creditor must deposit in the Registry a sufficient sum of money to provide for the subsistence of the debtor for the period of imprisonment at such rate as may be prescribed by the Minister by notification in the Gazette.
(3) Order 46, rules 12 and 13 shall apply with the necessary modifications to the sums of money deposited under this rule.
Arrest or Attachment before judgment
5. Applications for arrest and attachment before judgment under section 15 or 19. (O. 74 r. 5)
(1) An application under section 15 or 19 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
(2) An affidavit under paragraph (1) and any order made thereon, must be served on the defendant as soon as possible.
6. Indorsement and form of order. (O. 74 r. 6)
(1) An order of arrest or attachment of property before judgment must state the amount of claim and costs in respect of which it is issued, and before delivery to the Sheriff, be indorsed with the plaintiff’s address for service.
(2) An order under paragraph (1) must be in one of the forms in Form 179.
7. Plaintiff to provide defendant’s subsistence. (O. 74 r. 7)
Rule 4 shall with the necessary modifications apply to a plaintiff at whose instance a defendant is arrested or committed under part IV of the Ordinance.
8. Mode of seizure before judgment. (O. 74 r. 8)
Any property liable to seizure under Part V of the Ordinance shall be seized in the same manner as a seizure under a writ of seizure and sale.
9. Deposit against costs of attachment. (O. 74 r. 9)
(1) Before any order of attachment of property is executed, the plaintiff must deposit in the Registry a sufficient sum of money to defray the cost of the attachment and of keeping possession of the property,
(2) Order 46, rules 12 and 13, shall apply with the necessary modification to the sums of money deposited under this rule.
10. Release on payment of claim and costs. (O. 74 r. 10)
Where any property attached under an order of attachment is released by the sheriff on the defendant paying to the sheriff the sum stated in the order of attachment as the amount claimed by the plaintiff and costs as stated therein together with the costs of the execution up to the time of such payment, or under section 20 of the Ordinance the proper officer must give a receipt and keep the monies in such place as directed by the sheriff to abide the order of the Court.
11. Claims by third party. (O. 74 r. 11)
Any claim by a third party to property seized under part V of the Ordinance shall be dealt with in the manner relating to interpleader proceedings.
Judgment Notice
12. Application for judgment notice under section 8. (O. 74 r. 12)
Every application for a notice (thereinafter called a "judgment notice") under section 8 of the Ordinance must be by praecipe in Form 180 verified by the oath of the applicant.
13. Judgment notice (O. 74 r. 13)
A judgment notice must be in Form 181 and must be served personally, not less than 4 clear days before the day appointed for the debtor’s attendance unless the Court otherwise orders.
14. Hearing of judgment notice. (O. 74 r. 14)
(1) On the hearing of a judgment notice the Court may make an order of commitment or vary the instalment order as it thinks just.
(2) If an order of commitment is made, the Court may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of which the order is made.
Commitment
15. Order of commitment under section 7 or 17. (O. 74 r. 15)
An order of commitment under section 7 or section 17 of the Ordinance must be in Form 182.
16. Payment by debtor. (O. 74 r. 16)
Where an order of commitment for non-payment of money is made the debtor any, at any time, either to the sheriff or, if he is in prison, to the officer in charge of the prison, pay the amount stated in the order and obtain his discharge.
17. Certificate of satisfaction. (O. 74 r. 17)
(1) Where any judgment debt, in respect of which a debtor is imprisoned under the Ordinance, is satisfied by payment or otherwise, the judgment creditor must lodge with the Registrar a certificate of satisfaction signed by him in Form 183.
(2) If the judgment creditor makes default in lodging such certificate as aforesaid, the debtor, or any person on his behalf, may apply to the Court for an order for his discharge, and the Court in making such order may direct that the costs of the application be paid by the judgment creditor
(3) An order under this rule must be in Form 184.
Miscellaneous
18. Security, how given. (O. 74 r. 18)
(1) Where an order is made requiring a defendant to give security under the Ordinance the security shall be given in such manner, at such time, and on such terms (if any) as the Court may direct.
(2) when security has been given as ordered, the defendant, if he is in custody must be released.
19. Discharge of surety. (O. 74 r. 19)
Whenever the Court discharges a surety under section 16 of the Ordinance, it may at the same time order the defendant to be taken into custody and committed to prison for a term which may extend to six weeks unless he sooner gives fresh security.
20. Control or the Court. (O. 74 r. 20)
The money deposited, if any, and the security and all proceedings thereon shall be subject to the order and control of the Court.
21. Bankruptcy or administration order against debtor. (O. 74 r. 21)
Where at the hearing of any proceedings under the Ordinance the debtor satisfies the Court that a receiving order or an order of adjudication in bankruptcy or an administration order under section 106 of the Bankruptcy Act 1967 (55/67) has been made against him and that the debt was provable in the bankruptcy or in the administration, no order shall be made:
Provided that where an order of commitment has been made, the order if not executed shall be recalled and cancelled, and if the debtor is in prison, he shall be discharged.
22. Date of order of arrest. (O. 74 r. 22)
Any order of commitment or arrest of a judgment debtor under the Ordinance, shall bear the date of the day on which it was made, and shall continue in force for one year from and including such date and no longer, but it may be renewed subject to the conditions and in the manner prescribed for the renewal of writs of execution.
23. Costs. (O. 74 r. 23)
Unless in any case it is otherwise ordered, the costs of and incidental to orders for arrest, commitment and attachment under the Ordinance, and any amount spent by the plaintiff under rules 5 and 10, shall be the plaintiff’s costs in the cause.
ORDER 74
DEBTORS ORDINANCE 1957*
1. Application and interpretation. (O. 74 r. 1)
(1) These rules apply to proceedings under the Debtors Ordinance 1957 subject to the following rules of this Order.
(2) In this Order–
"Ordinance" means the Debtors Ordinance 1957 (71/57);
"judgment" includes any order for the payment of money.
Arrest of Judgment Debtor
2. Application under section 6. (O. 74 r. 2)
An application for an order of arrest under section 6 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
3. Form of order of arrest. (O. 74 r. 3)
An order for arrest under section 6 of the Ordinance must be in Form 178.
4. Conveyance and subsistence money. (O. 74 r. 4)
(1) Before any arrest is made under section 6 of the Ordinance, the judgment creditor must, unless the Registrar otherwise orders, deposit in the Registry a sufficient sum of money to defray the cost of bringing the debtor before the Court and detaining him in custody pending his appearance.
(2) Before an order of commitment made under of Ordinance is executed, the judgment creditor must deposit in the Registry a sufficient sum of money to provide for the subsistence of the debtor for the period of imprisonment at such rate as may be prescribed by the Minister by notification in the Gazette.
(3) Order 46, rules 12 and 13 shall apply with the necessary modifications to the sums of money deposited under this rule.
Arrest or Attachment before judgment
5. Applications for arrest and attachment before judgment under section 15 or 19. (O. 74 r. 5)
(1) An application under section 15 or 19 of the Ordinance must be made ex parte by summons supported by an affidavit to a Judge in Chambers, unless the Court otherwise orders.
(2) An affidavit under paragraph (1) and any order made thereon, must be served on the defendant as soon as possible.
6. Indorsement and form of order. (O. 74 r. 6)
(1) An order of arrest or attachment of property before judgment must state the amount of claim and costs in respect of which it is issued, and before delivery to the Sheriff, be indorsed with the plaintiff’s address for service.
(2) An order under paragraph (1) must be in one of the forms in Form 179.
7. Plaintiff to provide defendant’s subsistence. (O. 74 r. 7)
Rule 4 shall with the necessary modifications apply to a plaintiff at whose instance a defendant is arrested or committed under part IV of the Ordinance.
8. Mode of seizure before judgment. (O. 74 r. 8)
Any property liable to seizure under Part V of the Ordinance shall be seized in the same manner as a seizure under a writ of seizure and sale.
9. Deposit against costs of attachment. (O. 74 r. 9)
(1) Before any order of attachment of property is executed, the plaintiff must deposit in the Registry a sufficient sum of money to defray the cost of the attachment and of keeping possession of the property,
(2) Order 46, rules 12 and 13, shall apply with the necessary modification to the sums of money deposited under this rule.
10. Release on payment of claim and costs. (O. 74 r. 10)
Where any property attached under an order of attachment is released by the sheriff on the defendant paying to the sheriff the sum stated in the order of attachment as the amount claimed by the plaintiff and costs as stated therein together with the costs of the execution up to the time of such payment, or under section 20 of the Ordinance the proper officer must give a receipt and keep the monies in such place as directed by the sheriff to abide the order of the Court.
11. Claims by third party. (O. 74 r. 11)
Any claim by a third party to property seized under part V of the Ordinance shall be dealt with in the manner relating to interpleader proceedings.
Judgment Notice
12. Application for judgment notice under section 8. (O. 74 r. 12)
Every application for a notice (thereinafter called a "judgment notice") under section 8 of the Ordinance must be by praecipe in Form 180 verified by the oath of the applicant.
13. Judgment notice (O. 74 r. 13)
A judgment notice must be in Form 181 and must be served personally, not less than 4 clear days before the day appointed for the debtor’s attendance unless the Court otherwise orders.
14. Hearing of judgment notice. (O. 74 r. 14)
(1) On the hearing of a judgment notice the Court may make an order of commitment or vary the instalment order as it thinks just.
(2) If an order of commitment is made, the Court may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of which the order is made.
Commitment
15. Order of commitment under section 7 or 17. (O. 74 r. 15)
An order of commitment under section 7 or section 17 of the Ordinance must be in Form 182.
16. Payment by debtor. (O. 74 r. 16)
Where an order of commitment for non-payment of money is made the debtor any, at any time, either to the sheriff or, if he is in prison, to the officer in charge of the prison, pay the amount stated in the order and obtain his discharge.
17. Certificate of satisfaction. (O. 74 r. 17)
(1) Where any judgment debt, in respect of which a debtor is imprisoned under the Ordinance, is satisfied by payment or otherwise, the judgment creditor must lodge with the Registrar a certificate of satisfaction signed by him in Form 183.
(2) If the judgment creditor makes default in lodging such certificate as aforesaid, the debtor, or any person on his behalf, may apply to the Court for an order for his discharge, and the Court in making such order may direct that the costs of the application be paid by the judgment creditor
(3) An order under this rule must be in Form 184.
Miscellaneous
18. Security, how given. (O. 74 r. 18)
(1) Where an order is made requiring a defendant to give security under the Ordinance the security shall be given in such manner, at such time, and on such terms (if any) as the Court may direct.
(2) when security has been given as ordered, the defendant, if he is in custody must be released.
19. Discharge of surety. (O. 74 r. 19)
Whenever the Court discharges a surety under section 16 of the Ordinance, it may at the same time order the defendant to be taken into custody and committed to prison for a term which may extend to six weeks unless he sooner gives fresh security.
20. Control or the Court. (O. 74 r. 20)
The money deposited, if any, and the security and all proceedings thereon shall be subject to the order and control of the Court.
21. Bankruptcy or administration order against debtor. (O. 74 r. 21)
Where at the hearing of any proceedings under the Ordinance the debtor satisfies the Court that a receiving order or an order of adjudication in bankruptcy or an administration order under section 106 of the Bankruptcy Act 1967 (55/67) has been made against him and that the debt was provable in the bankruptcy or in the administration, no order shall be made:
Provided that where an order of commitment has been made, the order if not executed shall be recalled and cancelled, and if the debtor is in prison, he shall be discharged.
22. Date of order of arrest. (O. 74 r. 22)
Any order of commitment or arrest of a judgment debtor under the Ordinance, shall bear the date of the day on which it was made, and shall continue in force for one year from and including such date and no longer, but it may be renewed subject to the conditions and in the manner prescribed for the renewal of writs of execution.
23. Costs. (O. 74 r. 23)
Unless in any case it is otherwise ordered, the costs of and incidental to orders for arrest, commitment and attachment under the Ordinance, and any amount spent by the plaintiff under rules 5 and 10, shall be the plaintiff’s costs in the cause.
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