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SUBORDINATE COURTS ACT (CHAPTER 6) MAGISTRATES' COURT (EXECUTION PROCEEDINGS) RULES

SUBORDINATE COURTS ACT

(CHAPTER 6)

MAGISTRATES’ COURT (EXECUTION PROCEEDINGS) RULES

S 5/92

REVISED EDITION 2001

(31st January 2001)

SUBSIDIARY LEGISLATION

Rules under section 25

ARRANGEMENT OF RULES

Rule

PART I

PRELIMINARY

1. Citation.

2. Interpretation.

PART II

EXECUTION

3. Modes of execution.

4. Judgment debtor may be summoned.

5. When judgment debtor liable to arrest.

6. Examination of judgment debtor.

7. Production of documents.

8. Powers of Court.

9. Payment of instalments.

PART III

MOVABLE PROPERTY

10. Attachment and sale of movable property.

11. Property outside jurisdiction.

12. Sale of movable property.

13. Raising of attachment and cancellation of sale.

PART IV

SUPPLEMENTARY

14. Committal to prison.

15. Investigation into claims and objections.

16. Exemption from attachment.

17. Attachment of debts by garnishee order.

18. Recovery of possession of immovable property.

19. Execution if no procedure provided.

SCHEDULE

SUBSIDIARY LEGISLATION

Rules under section 25

MAGISTRATES’ COURTS (EXECUTION PROCEEDINGS) RULES

Commencement: 27th March 1992

[S 5/92]

PART I

PRELIMINARY

Citation.

1. These Rules may be cited as the Magistrates’ Courts(Execution Proceedings) Rules.

Interpretation.

2. In these Rules —

“Court” means a Magistrate’s Court;

“Court bailiff” means any person appointed to be a bailiff of aCourt;

“decree” means a decree for the payment of money.

PART II

EXECUTION

Mode of execution.

3. A decree by a Court may be enforced as follows —

(a) by attachment and sale of the movable or immovable property of the judgment debtor;

(b) by garnishee proceedings under rule 17;

(c) by detention of the judgment debtor in prison.

Judgment debtor may be summoned.

4. (1) A judgment creditor who wishes to execute a decree may apply,orally or in writing, to the Court which made the decree for a summons requiringthe judgment debtor to appear at a place and time and on a date stated thereinto the amount owing to the judgment creditor.

(2) The fee for any such application shall be $5.

(3) The Court may issue a summons forthwith.

(4) Such summons shall be in Form 1 in the Schedule. The fee payable on theissue thereof shall be $10.

(5) If the judgment debtor is not within the jurisdiction of the Court whichmade the decree, the summons issued under rule 4(3) shall be transmitted to theCourt within whose jurisdiction the judgment debtor is believed to be and thelatter Court shall cause the summons to be served on the judgment debtor.

When judgment debtor liable to arrest.

5. (1) If the judgment debtor does not appear before the Court in obedience to a summons issued under rule 4(3), the judgmentcreditor may apply, orally or in writing, for the issue of a warrant for thearrest of the judgment debtor.

(2) The fee for any such application shall be $5.

(3) The Court may issue a warrant of arrest against the judgment debtor.

(4) Such warrant shall be in Form 2 in the Schedule. The fee payable on theissue thereof shall be $20.

(5) If the judgment debtor is not within the jurisdiction of the Court whichmade the decree, the warrant of arrest issued under rule 5(3) shall betransmitted to the Court within whose jurisdiction the judgment debtor or isbelieved to be and the latter Court shall cause such warrant to be executed.

Examination of judgment debtor.

6. (l) When the judgment debtor appears before the Court inobedience to a summons issued under rule 4(3), or in pursuance of a warrant ofarrest issued under rule 5(3), the Court shall examine him as to his means andhis ability to pay the amount owing to the judgment creditor.

(2) The judgment debtor shall be examined on oath and shall be entitled tocall witnesses.

(3) The judgment creditor shall be entitled to give evidence and to call witnesses. Any evidence given at the examination of the judgment debtor shall be subject to cross- examination by the opposing party.

Production of documents.

7. The judgment debtor shall upon such examination produce all books,papers and documents in his possession or power relating to his property.

Powers of Court.

8. (1) Subject to the provisions of these Rules, whenever —

(i) the Court has concluded its examination under rule 6(1); or

(ii) the judgment debtor, having been duly served with a summonsissued under rule 4(3), fails to appear before the Court forexamination under rule 6(1); or

(iii) the judgment debtor cannot after diligent search be traced, the Courtmay make an order under rule 8(2).

(2) The Court may, in accordance with rule 8(1), make any of the following orders —

(a) order the judgment debtor to be discharged, whereupon suchdischarge shall operate as an extinguishment of the debt;

(b) order the amount owing to the judgment creditor, together withcosts, to be paid by instalments of such amount as the Court may fix, suchinstalments to be paid on specified dates or at specified intervals of time;

(c) by warrant addressed to the Court bailiff order the attachment andsale of any movable property belonging to the judgment debtor;

(d) order the judgment debtor to be committed to prison under rule14; provided that such an order may be suspended on payment of instalments ofsuch amount as the Court may fix;

(e) make such other order as in the circumstances of the case theCourt may consider just.

Payment of instalments.

9. (1) If the judgment debtor makes default in the payment of any instalment ordered to be paid under rule 8(2) the judgment creditor may apply, orally or in writing, for a second or subsequent summons to be issued under rule 4 and thereupon the provisions of rules 4, 5, 6, 7 and 8 shall apply.

(2) No further fee shall be charged in respect of a second or subsequent application for a warrant of arrest or in respect of the issue of any such summons or warrant.

PART III

MOVABLE PROPERTY

Attachment and sale of movable property.

10. (1) The warrant of attachment and sale of movable property issued under rule 8(2) (c) shall be in Form 3 in the Schedule.

(2) The fee payable on the issue of such warrant shall be $20.

(3) The attachment shall be made by seizure of the property to be attached.The Court shall, if it is practicable to do so, remove such property and convey it to the Courthouse where it shall be kept in safe custody. Ifit is not practicable to remove such property, the attachment shall be madeby affixing thereto a copy of the warrant of attachment and sale, or bydisplaying at the place where such property is a copy of the warrant.

(4) No attachment shall be made before 6 a.m. or after 10 p.m.

(5) Such reasonable force as may be necessary to give effect to the warrantof attachment may be used. The Court bailiff and any person assisting him may,when he has gained access to a dwelling-house, break open, if necessary, thedoor of any room in which he has reason to believe any property liable toattachment to be.

(6) If he is engaged in executing any warrant of attachment and sale, theCourt bailiff shall carry on his person a letter of authority, indicating thathe is the holder of the office of Court bailiff. He shall produce such letterfor inspection if requested to do so by any person interested in the attachmentand sale. Failure to produce such certificate shall not invalidate suchattachment and sale.

(7) A Court bailiff may, if he thinks it desirable, be accompanied by apolice officer, who shall be in uniform, or by a Court peon, or by both, toassist him in making the attachment. The judgment creditor may also accompanythe Court bailiff.

(8) No person shall without lawful authority —

(a) interfere with the process of attachment and sale; or

(b) obstruct the Court bailiff, or any person authorised by the Court to assist the Court bailiff in the execution of his duties.

(9) Any person contravening rule 10(8) shall be guilty of an offence andliable to a fine of $2,000.

Property outside jurisdiction.

l l . (1) If it appears that there is no property liable to attachment within the jurisdiction of the Court which made the decree, such Court shall transmit the warrant of attachment and sale to the Court within whose jurisdiction such property is believed to be, and the latter Court shall cause the warrant to be executed by the Court bailiff attached to that Court.

(2) The Court bailiff shall return the warrant on the due date to the Courtto which he is attached and the latter Court shall transmit it to the Courtwhich made the decree.

(3) If the property is sold in pursuance of the warrant of attachment andsale the Court bailiff shall pay the proceeds of the sale into the Court towhich he is attached and the latter Court shall advise the Court which made thedecree accordingly.

Sale of movable property.

12. (l) Any property sold in pursuance of a warrant of attachmentand sale issued under rule 8(2) (c) shall be sold by public auction,unless the Magistrate otherwise directs. If the Magistrate does direct otherwise, the property shall be sold in accordance with suchdirections.

(2) Notice of the date, hour and place of the intended sale shall beexhibited at the Courthouse. No sale shall take place until after the expirationof at least 15 days from the date of such notice.

(3) Any property of a perishable nature may be sold in pursuance of awarrant of attachment and sale issued under rule 8(2) (c) by publicauction, or in such other manner as the Magistrate may direct, without complyingwith the provisions of rule 12(2).

Raising of attachment and cancellation of sale.

13. If the judgment debtor, or any person on his behalf, pays theamount of owing to the judgment creditor, together with all costs, the attachment of the property shall cease forthwith and the sale shall becancelled.

PART IV

SUPPLEMENTARY

Committal to prison.

14. (1) If the Court is satisfied —

(a) that the judgment debtor has, or has had since the date of thedecree, the means to pay the sum in respect of which he has made default;and

(b) that the judgment debtor has refused or neglected, or refusesor neglects, to pay the sum in respect of which he is in default,

the Court may order the committal of such judgment debtor to prison.

(2) No order committing a judgment debtor to prison shall be made unless the judgment creditor deposits in Court the sum of $600 as a subsistence allowance for the maintenance of the judgment debtor in prison. When the judgment debtor is released from prison, the cost of his maintenance calculated at the rate of $20 per diem shall be deducted from the sum of $600 and the balance, if any, shall be refunded to the judgment creditor.

(3) No period of detention in prison as a civil prisoner shall exceed 30days.

(4) Detention in prison as a civil prisoner shall not extinguish thejudgment debt, and the cost of such maintenance as calculated under rule 14(2)shall be added to and form part of such judgment debt.

(5) A judgment debtor shall not be committed to prison on more than oneoccasion in respect of the same judgment debt or any part thereof.

(6) When the judgment debtor, or any person on his behalf, pays the amountowing to the judgment creditor, together with all costs, including the subsistence allowance mentioned in rule 14(2) the judgment debtor shall bereleased from prison forthwith.

(7) If the judgment debtor is not within the local limits of thejurisdiction of the Court which made the decree, the order committing thejudgment debtor to prison shall be transmitted to the Court within whosejurisdiction the judgment debtor is believed to be, and the latter Court shallcause such order to be executed.

(8) An order committing a judgment debtor to prison under this rule shallcontinue in force, if not executed, for a period of 12 months from the datethereof.

Investigation into claims and objections.

15. (a) If a claim is made by a third party to any propertyattached in pursuance of a warrant of attachment and sale issued under rule8(2) (c) ; or

(b) if an objection is made on the ground that the property is notliable to attachment; or

(c) if in any proceedings under rule 17 it is suggested by a garnisheethat the debt sought to be attached belongs to a third person, or that a thirdperson has a lien or charge upon it,

the Court shall investigate the claim or objection and, after hearing allinterested parties, shall make such order as it may think fit.

Exemption from attachment.

16. The following property shall be exempt from attachment and sale—

(a) the necessary wearing apparel, cooking utensils, beds andbedding of the judgment debtor, his wife and children;

(b) the tools of artisans;

(c) if the judgment debtor is a farmer, his implements of husbandry and such cattle, buffaloes and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such; and

(d) where the judgment debtor is a fisherman, his fishing gear,nets, traps and bait, and such fishing boats as may, in the opinion of theCourt, be necessary to enable him to earn a living as such.

Attachment of debts by garnishee order.

17. (1) The Court may, upon the ex parte application of thejudgment creditor and on payment of a fee of $10, and upon being satisfied thatthe decree is still unsatisfied and that any other person is indebted to suchjudgment debtor, make an order nisi in Form 4 in the Schedule.

(2) Such order shall provide that debts owing from that other person,hereafter called the garnishee, to the judgment debtor shall be attached tosatisfy the decree together with the costs of the garnishee proceedings. By thesame or any subsequent order, the Court may order that the garnishee shallappear before the Court to show cause why he should not pay to the person whohas obtained such decree the debt due from him to the judgment debtor, or somuch thereof as may be sufficient to satisfy the decree together with costsaforesaid.

(3) The following classes of periodical payments shall be exempt fromattachment under rule 17(1) namely —

(a) payments so exempt under any written law of BruneiDarussalam;

(b) wages of seamen, or of domestic servants, labourers orworkmen;

(c) maintenance due from a husband to his divorced wife.

(4) At least 7 days before the day of hearing, a copy of the order nisishall be served upon the garnishee and on the judgment debtor.

(5) If money liable to be attached by garnishee proceedings is in thecustody or under the control of a public officer in his official capacity or incustody of a Court, the order nisi shall not be made under the provisions ofrule 17(1) unless consent to the attachment is first obtained from the AttorneyGeneral, in the case of money in the custody or control of a public officer orof the Court, in the case of money in the custody of a Court. Notice of theorder shall be served on the public officer or on the Registrar of theCourt.

(6) Service of an order that a debt due or accruing to the judgment debtorshall be attached, or notice thereof to the garnishee, in such manner as theCourt may direct, shall bind the debt in his hands.

(7) If the garnishee does not within the time prescribed in the order nisipay into Court the amount due from him to the judgment debtor, or an amountequal to the judgment debt, together with the costs of the garnisheeproceedings, and does not dispute the debt due or claimed to be due from him tosuch debtor, or if he does not appear upon summons, the Court upon proof ofservice may order payment of the amount from such garnishee, or so much as maybe sufficient to satisfy the judgment, together with the costs of the garnisheeproceedings.

(8) If the garnishee appears and disputes his liability, the Court, instead of making an order that payment shall be made, may order that any issue necessary for determining his liability be determined in any manner in which any issue in any proceedings may be tried or determined.

(9) Payment made by, or execution levied upon, a garnishee under any such proceedings shall be a valid discharge to him against the debtorliable under a judgment, to the amount paid or levied.

Recovery of possession of immovable property.

18. When an order or judgment for the recovery of immovable propertyhas been made by a Court, the party who has obtained the judgment may apply,orally or in writing, to the Court to be put in possession of the property, ifnecessary by the Court bailiff.

Execution if no procedure provided.

19. If no provision for execution procedure is made, or no appropriateform is provided by these Rules, the procedure and practice in force in the HighCourt shall, as near as may be, be followed.

SCHEDULE

FORM 1

In the Court of the Magistrate at .....................................................................................

SUMMONS TO JUDGMENT DEBTOR TO SHOW CAUSE

(Rule 4(4))

A.B. ... Plaintiff-Judgment Creditor versus

C.D. ... Defendant-Judgment debtor

Civil Case No. .............................................. 20................... .

To (name) ................................................................................................................................. of (address) ............................................................................................................................... WHEREAS A.B. has applied to this Court for a summons to be issued requiring you to show cause why the judgment passed in the abovementioned case should not be executed by the attachment and sale of your movable property and/or by your detention in prison as a civil prisoner.

THE SUMMONS is to require you to attend on the.......................................................

day of ..............................., 20 .............. , at ........................ o’clock the Court of Magistrate

at ..................................................................................................for the purpose of showing cause accordingly; provided that if the sum now owingto ....................................... namely,

$ ................................... inclusive of all costs, be soonerpaid, your attendance in obedience to this summons may be dispensed with.

Given under my hand and the seal of the Court this.......................................................

day of ................................................, 20 ................

................................................. Magistrate

Fee: $10. Paid vide Receipt No.................................................... dated.................................

CERTIFICATE OF SERVICE

I hereby certify that I served the original of this summons on the aforesaid.................. on the ............................ day of............................ 20 ............. , at ...........................o’clock at (place) ..........................................

(Place) ..............................................

(Date) ...............................................

(Signature) .........................................................Process-server.

FORM 2

In the Court of the Magistrate at.....................................................................................

WARRANT OF ARREST OF JUDGMENT-DEBTOR

(Rule 5(4))

A.B. ... Plaintiff-Judgment creditor

versus

C.D. ... Defendant-Judgment debtor

Civil Case No. ................................ 20 ............... .

To the Officer in Charge of the Police District of............................................. and to all

Police Constables.

WHEREAS (name) ........................................., the judgment debtorin the above-mentioned case, of (address).......................................................... has failed to appearbefore this Court

in obedience to a summons issued on the ......................... day of ...................., 20 ............ .

THIS WARRANT is to command you to arrest the said..................................... and to bring him before this Court as soon as may be practicable, provided that if the sum now

owing to..................................................................................the judgment-creditor, namely

$ ......................................................., inclusive of allcosts, be paid to you, you shall release the said .......................................... forthwith.

You are further commanded to return this Warrant on or before the.............................. day of ......................., 20 .............., with an endorsement certifying the day on which and the manner in which it hasbeen executed, or why it has not been executed.

Given under my hand and the seal of the Court this.......................................................

day of ........................................, 20 ............... .

.............................................. Magistrate

Fee: $20. Paid vide Receipt No. .................................... dated.......................................

FORM 3

In the Court of the Magistrate at .....................................................................................

WARRANT OF ATTACHMENT AND SALE OF MOVABLE

PROPERTY

(Rule 10(1))

A.B. ... Plaintiff-Judgment creditor

versus

C.D. ... Defendant-Judgment debtor

Civil Case No. ................................. 20 ............... .

To the Court Bailiff:

WHEREAS C.D. was ordered by judgment of this Court passed on the........................ day of .........................................., 20............... , in the above-mentioned case to pay to A.B. thefollowing sum —

Principal ... ... ... ... ... ... $ ............................... Costs(including interest if any) ... ... ... $ ...............................

Costs of execution ... ... ... ... ... $ ...............................

TOTAL $ ............................... Less sum paid, if any ... ... ... ... ... $ ...............................

Sum now owing ... ... ... ... ... $ ............................... ANDWHEREAS the said sum of $ ............................., now owing, has not beenpaid: THIS WARRANT is to command you to attach the movable property

as set forth in the Schedule hereto annexed (1) property of the said C.D. which shall be pointed out to you by the said A.B. , (1) provided that if the sum now owing, namely

$ ............................................ inclusive of all costs, shallbe paid to you before you have attached the said property, you shall not proceedwith the attachment.

YOU are further commanded to sell, or to arrange for a local auctioneer orother suitable person to sell, by public auction the property attached under theauthority of this of

this Warrant, providing that you have given at least ..................................................... days’ previousnotice of the intended sale affixing the same in the Court-house, and provided further that if the sum now owing, namely, $................................... inclusive of all costs, be sooner paid, youshall cancel, or cause to be cancelled, the intended sale.

YOU are further commanded to return this Warrant on or before the............................

............................................ day of..............................., 20 .................., with an endorsementcertifying the manner in which it has been executed or why it has not beenexecuted.

Given under my hand and the seal of the Court this............................................ day of

......................................., 20 ............... .

................................................. Magistrate

Fee: $20. Paid vide Receipt No. ..................................... dated......................................

Note — (1) Delete whichever is inapplicable. Schedule of movableproperty to be attached —

....................................................................................

....................................................................................

FORM 4

In the Court of the Magistrate at .........................................................................................

GARNISHEE ORDER NISI

(Rule 17)

A.B. ... Plaintiff-Judgment creditor versus

C.D. ... Defendant-Judgment debtor

WHEREAS —

Civil Case No. ................................. 20 ............... .

1. On the ............................. day of ........................, 20............., in the ........................ Court X.Y. (the judgmentdebtor) was ordered to pay $....................................................... to A.B. (thejudgment creditor) together with $ .................................. forcosts.

2. Out of the total debt of $ ................................... the sum of$ ................................... remains owing to the judgmentcreditor.

3. The judgment creditor claims that you owe the said judgment debtor the sum of

$ ................................

YOU ARE HEREBY ORDERED to appear at a Court to be held at ............................. on the ..................................... day of ..........................., 20 .............., at ................................ a.m./p.m. to tell the Court of any reason why you should not be ordered to pay the judgment creditor either —

(i) the whole of the debt owed by you to the judgment debtor;

or

(ii) so much of it as may be the sum remaining owing to the judgmentcreditor, together with the costs of this summons.

AND TAKE NOTICE that after receiving this summons you may not pay the wholeor any part of the debt owed by you to the judgment debtor to any personPROVIDED

that if within ..................................... days of receiving thissummons (including the day you are served with it) you pay the total amount ofthe debt and costs (as shown below) into Court, then you will incur no furthercosts.

Given under my hand and the seal of the Court this....................................................... day of.........................................., 20 .................. .

.................................................. Magistrate