Debt Recovery: Part 2 – Enforcement of Judgment

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A judgement is a paper judgment unless it can be enforced against a judgment debtor. Find out how to enforce a judgment against the judgment debtor.

We have previously discussed how to obtain a judgment against an individual, corporate entities or organisations who owes you a debt i.e. the judgment debtor that you wish to recover the sum from. (Click here to read more on Debt Recovery in Malaysia: Part 1 – Obtaining a Judgment) However, the fact that you manage to obtain a judgment against a judgment debtor does not equate money recovered. In such instances, commencement of an enforcement proceeding to enforce the judgment against the judgment debtor may be the next move to take.

There is a myriad of methods where you can enforce a judgement against a judgment debtor. So, how do we enforce a judgment against judgment debtor?

Today, we will be discussing the 3 general enforcement proceedings which you can pursue to recover your debt, namely:

  1. Writ of seizure and sale[1];
  2. Garnishee proceedings[2]; and
  3. Committal proceedings[3].

Writ of Seizure and Sale

A writ of seizure and sale is an enforcement proceeding whereby you make an application to the court to order the seizure and sale by way of auction of the judgment debtor’s property, both movable and immovable, to satisfy the debt that is owed to you.

The application can either be made when the judgment against the judgement debtor is made[4] or it can be made at a later stage, supported by a notice of application and an affidavit in support, stating the grounds for an application for seizure and sale and the evidence such application[5]. If the application is successful, the court will order either a sheriff or bailiff to seize the judgment debtor’s properties.

Once the properties are seized, the judgment debtor cannot deal with the properties in any manner that will affect the validity of the seizure, such as selling or mortgaging the properties (for movable properties)[6] or transferring, leasing, or charging the property to another party (for immovable properties)[7].

However, do take note that the law dictates that certain  properties cannot be seized and sold[8].

Garnishee Proceedings

A garnishee proceeding is an enforcement proceeding whereby you make an application by way of notice of application[9] and an affidavit[10] to court to order the garnishee (i.e. a third party who is instructed by way of legal notice to surrender money to settle a debt or claim) to pay the amount that is due to the judgment debtor to you[11]. The application needs to state:

  1. The judgement that needs to be enforced and the amount due; and
  2. Your belief that the third party(s), including financial institutions (the garnishee), is within the jurisdiction and owes you monies as the judgment debtor, alongside with the grounds for such belief.

The garnishee will be given a chance to be heard in court and to dispute the grounds of application[12]. If the court is satisfied, the court will order the garnishee, instead of the judgment debtor, to pay you (the judgment creditor) the amount that is due and owing.

In the event the garnishee is ordered to pay you the monies owed by the judgment debtor, the garnishee will be discharged from their obligations to pay the judgment debtor the sum that is due to the judgement debtor by them only to the extent of the amount that was paid to you. The garnishees will still be liable for the remainder of the debt that is due to them to the judgment debtor[13].

Committal Proceedings

A committal proceedings is an enforcement proceeding whereby you make an application to court to order the judgment debtor to be put fined or put behind bars for the judgment debtor’s refusal to comply with judgment ordering the judgment debtor to settle the debt due within the time specified in the order[14].

You cannot initiate a committal proceedings without first obtaining permission from the court[15]. In order to apply for a committal proceedings, you will have to put in a notice of application supported by an affidavit[16], clearly stating down the facts below[17]:

  1. Your name;
  2. Name and address of the judgment debtor; and
  3. The reasons of committing the judgment debtor.

The judgement debtor will then be given a chance to be heard before the court decides if an order for committal is appropriate against a judgment debtor.

Do note that however, you will only have 12 years to enforce the judgement you have obtained against the judgment debtor. Any action to enforce the judgment after 12 years will be time barred[18].


 

[1] Order 45 Rule 1 (1) (a), Rules of Court 2012
[2] Order 45 Rule 1 (1) (b), Ibid
[3] Order 45 Rule 1 (1) (c), Ibid
[4] Order 47 Rule 1 (1), Ibid
[5] Order 47 Rule 1 (2) – (3), Ibid
[6] Order 47 Rule 4, Ibid
[7] Order 47 Rule 6 (a), Ibid
[8] Section 3 (1)(a) – (h), Debtors Act 1957
[9] Order 49 Rule 2, Rules of Court 2012
[10] Ibid
[11] Order 49, Rule 1 (1), Ibid
[12] Order 49 Rule 3, Ibid
[13] Order 49 Rule 8, Ibid
[14] Order 45 Rule 5 (1)(a), Ibid
[15] Order 52 Rule 3 (1), Ibid
[16] Order 52 Rule 3 (2), Ibid
[17] Ibid
[18] Section 6 (3), Limitation Act 1953

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