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Maltese Laws |
C 375
AN ACT to amend the Code of Organization and Civil Procedure, Cap.
12, on the execution of judgements and executive titles, on precautionary acts and other procedures connected therewith.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled,
and by the authority of the same as follows>-
1. (1) The short title of this Act is the Code of Organization and Civil Procedure (Amendment) Act, 2005 and it shall be read
and construed as one with the the Code of Organization and Civil Procedure, hereinafter referred to as “the Code”.
(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and
different dates may be so appointed for different provisions and different purposes of this Act.
2. The Arrangement of Code shall be amended as follows>
(a) in Book Second, in Part I, for the words from “Title
VII” to Articles “389-395” there shall be substituted the following>-
Short title and commencement.
Amendment of the Arrangement of Code.
C 376
Articles
“Title VII. Of the Enforcement of Judgments and
other Executive Titles …..……………272-395
General Provisions……………………272-281
Sub-title I. Of the Warrant of Seizure of Movable
Property ………………………………282-293
Sub-title II. Of the Warrant of Seizure of
Immovable Property.……………….…294-311
Sub-title III. Of the Warrant of Seizure of a
Commercial Going Concern …………312-312F
Sub-title IV. Of Judicial Sales by Auction …………313-357
Sub-title V. Of the Executive Garnishee Order ……375-383
Sub-title VI. Of the Warrant of Ejectment or
Expulsion from Immovable Property ……… 384
Sub-title VII. Of the Warrant In Factum …………… 385-388
Sub-title VIII. Of the Warrant of Executive Arrest
of Aircraft or Sea Vessels …...……388A-388B
Sub-title IX. Of the Warrant In Procinctu……………… 388C
Sub-title X. Of the Rendering of Accounts and
Liquidation of Fruits …………………389-395”<
and
(b) in Book Third, for the words from “Title VI” to “Of the
Meditatio Fugae Warrant” there shall be substituted the following>- Articles
“Title VI. Of Precautionary Acts …………………829-876
General Provisions ………………… 829-838B
Sub-title I. Of the Warrant of Description ……… 839-845
Articles
Sub-title II. Of the Warrant of Seizure …………..846-848
Sub-title III. Of the Warrant of Seizure of a
Commercial Going Concern………848B-848C
Sub-title IV. Of the Garnishee Order ………………849-854
Sub-title V. Of the Warrant of Executive Arrest
of Aircraft or Sea Vessels ……………855-863
Sub-title VI. Of the Warrant of Prohibitory
Injunction ……………………………873-876”.
3. In Title VII of Part I of Book Second of the Code, the words “Sub-title I”, immediately before the words “General Provisions”,
shall be deleted.
4. Articles 252 to 271 of the Code shall be deleted.
5. For article 273 of the Code there shall be substituted the following>-
C 377
Deletion of sub- heading
inTitle VII.
Deletion of articles
252
to 271 of the Code.
Substitution of article
273 of the Code.
“Executive acts.
273. The executive titles mentioned in article 253 may, according to circumstances, be enforced by any of the following executive
acts>
(a) warrant of seizure of movable property<
(b) warrant of seizure of immovable property< (c) warrant of seizure of a commercial going
concern<
(d) judicial sale by auction of movable or of immovable property or of rights annexed to immovable property<
(e) executive garnishee order<
(f) warrant of ejection or eviction from immovable property<
(g) warrant in factum<
C 378
Amendment of article
274 of the Code.
Renumbering and amendment
of article 278 of the
Code.
Renumbering of article
279 of the Code.
Renumbering and substitution
of article 280 of the
Code.
(h) warrant of arrest of aircraft or sea vessels< (i) warrant in procinctu.”.
6. Article 274 of the Code shall be amended as follows>
(a) in the proviso to sub-article (1) thereof, for the words “is also to append his own signature” and “to obtain beforehand
such authorisation” there shall be substituted the words “shall append his own signature” and “to obtain such authorisation”
respectively< and
(b) in sub-article (2) thereof, for the words “the thing due in virtue of the title” there shall be substituted the words “and,
or the article due in virtue of the title, and also such remedies and, or provisions that are being demanded”.
7. Article 278 of the Code shall be renumbered as article 275 of the Code and shall be amended as follows>
(a) in sub-article (1) thereof, for the words from “The marshal may,” to “break open” there shall be substituted the words
“The court executing officer may, in connection with the execution of any warrant committed to him, after calling in two witnesses,
exercise all such powers as are reasonably required of him to execute the warrant, which includes the breaking open of”<
(b) in sub-article (2) thereof, for the words from “Nevertheless,” to “the marshal” there shall be substituted the words
“In the case of any warrant for the seizure of any property of the Government of Malta, the court executing officer”< and
(c) immediately after sub-article (2) there shall be added the following new sub-article>
“(3) The Prime Minister may from time to time by regulations establish a list of property pertaining to the State which may not
be the subject of an executive or a precautionary warrant.”.
8. Article 279 of the Code shall be renumbered as article 276 of the Code.
9. Article 280 of the Code shall be renumbered as article 277 of the Code and there shall be substituted the following new article
therefor>
“Time for execution of warrants and orders.
277. (1) Saving the exceptions laid down in this Code, no warrant or garnishee order may be executed other than during such
time as may be prescribed by the Minister responsible for justice by regulations made under this article.
(2) Regulations made under this article may also provide for such cases in which the execution of a warrant or an order is allowed
to take place other than the prescribed time, the method of execution and the statements which have to be included in the certificate
of service>
Provided that, for reasons of urgency to be declared on oath by the applicant, the court may allow the execution of any warrant or
order other than during the prescribed time.”.
C 379
10. Article 281 of the Code shall be renumbered as article 278 of the Code and shall be amended as follows>
(a) in sub-article (1), for the words “The marshal shall deliver a copy of the warrant or order” there shall be substituted
the words “The court executing officer shall deliver a copy of the warrant or order at the first available opportunity”< and
(b) in sub-article (2), for the words “otherwise direct, the marshal” there shall be substituted the words “otherwise direct
or the Minister responsible for justice may in terms of article 277 (2) in a different manner prescribe, the court executing officer”.
11. Article 282 of the Code shall be renumbered as article 279 of the Code and shall be amended as follows>
(a) for the words “The nullity” there shall be substituted the words “Where the basis of nullity is not of a grievous nature,
the nullity”< and
(b) for the word “marshal” wherever it appears, there shall be substituted the words “court executing officer”.
12. Article 283 of the Code shall be renumbered as article 280 of the Code.
13. Article 283A of the Code shall be renumbered as article 281 of the Code and there shall be substituted the following new article
therefor>
Renumbering and amendment
of article 281 of the
Code.
Renumbering and amendment
of article 282 of the
Code.
Renumbering of article
283 of the Code.
Renumbering and substitution
of article 283A of the Code.
C 380
“How executive acts
may be impugned.
Appeal from decree.
281. (1) Without prejudice to any other right under this or any other law, the person against whom an executive act has been
issued or any other person who has an interest may make an application, containing all desired submissions together with all documents
sustaining such application, to the court issuing the executive act praying that the executive act be revoked, either totally or
partially, for any reason valid at law.
(2) The application shall be served on the opponent who shall, within ten days, file a reply containing all submissions which such
opposite party may wish to make together with all documents sustaining the reply which are within its ability to file>
Provided that the court may, in urgent cases, reduce the period referred to in this sub-article. In default of such opposition the
court shall accede to the demand.
(3) The court shall decide on the application after hearing the parties and receiving such evidence as it may deem fit, if it so
considers, within a period not later than one month from the filing of the said application.
(4) An appeal from a decree delivered under sub- article (3) of this article may be entered by application within six days from
the date on which the decree is read out in open court. The Court of Appeal shall appoint such appeal for hearing within one month
from the date when the decree is read out in open court, and the appeal shall be decided within three months from the date when it
has been appointed for hearing.
Deletion of articles
284 to 304 of the
Code.
Addition of new articles
282 to 293 in the
Code.
(5) The security referred to in article 249 shall not be required in the cases referred to in the previous sub-article.”.
14. Articles 284 to 304 of the Code shall be deleted.
15. Immediately after sub-heading “Sub-Title I - Of the Warrant of Seizure of Movable Property”, there shall be substituted
the following new articles 282 to 293 in the Code>
“Warrant of seizure on movable property.
282. (1) The warrant for the seizure of movable property shall, besides the particulars stated in article 274, contain Court
orders about>-
(a) (i) the appointment of the day, place and time for the judicial sale by auction and the subsequent seizure and removal thereupon
of all such articles from the place which has been indicated by the creditor or from the person of the debtor< or
(ii) the seizure from the place indicated by the creditor, including from the person of the debtor, of any such article which the
debtor may possess or such article or articles as may be mentioned in the warrant< and also that after the execution of the warrant,
the court executing officer shall be ordered to fix, together with the advocate or the legal procurator of the creditor, the day
when the judicial sale by auction is to be held in consultation with the executing officer responsible therefor, and such executing
officer shall also fix with the creditor the date, which shall at least be seven days prior to the date of the judicial sale by auction,
when the removal of the articles which the executing creditor selects to have removed shall take place<
(b) the execution of the warrant, if so required, after legal hours or on a Sunday or public holiday, and if after two attempts
to execute the warrant the court executing officer fails to effect such execution, he shall be authorised to force open the place<
(c) the transport of the property seized and to be removed to the official storage places established by regulations made by the
Minister responsible for justice, and about the transfer of their possession from the debtor to the official consignatary appointed
in terms of such regulations<
(d) the taxing and receipt of payment due to the official consignatary by the creditor for such period during which the articles
seized and to be removed would be under the care of the official consignatary, so however that such payment may be divided in proportion
to the periods established by the Registrar depending on the nature of the articles seized and to be removed. Such payment is made
subject to the right of regress against the debtor when such right exists<
(e) the appointment of experts to make a valuation of the property seized, if so required by law, either in
C 381
C 382
Cap. 342.
Description of property seized.
Contents of certificate in case
of unsuccessful execution.
Payment of the amount due.
special circumstances which the court may deem appropriate, or on the demand of any interested party or of the debtor<
(f) the appointment of an auctioneer who shall receive a fee in terms of the Auctioneers Act, if so required by law<
(g) an order for the judicial sale by auction of such articles as are seized and to be removed on the appointed day in terms of
regulations to be made by the Minister responsible for justice, without further service of any notice to the debtor.
(2) The provisions of this Sub-title shall not apply to sea vessels or other craft having a length exceeding ten metres, and to
aircraft.
283. (1) (a) The court executing officer shall attach to the said warrant a detailed description of the property seized.
(b) The creditor or the debtor or any interested party may demand the court executing officer to take any photograph or filmshot
of the detained articles either by electronic or by any other means at the expense of the party making the demand.
(2) If the court executing officer finds no movable property, or finds only such property as is not liable to seizure, he shall
make a certificate to that effect, stating therein the nature of the movable property, if any, not liable to seizure, and he shall
attach such certificate to the warrant.
284. (1) When a warrant of seizure is being executed, it is only the full amount claimed by the creditor that may be paid by the
debtor to the court executing officer.
(2) The court executing officer shall describe in detail the property seized and -
(a) where the property includes any merchandise, he shall cause such merchandise to be weighed, measured or gauged, as the case
may be<
(b) where money or securities for money, jewellery, or articles of precious metal are seized, he
Seizure of papers.
Official consignatary.
shall accurately state the amount or nominal value or weight thereof and he shall within the shortest time possible take the same
to the registry and lodge them therein by means of a schedule<
(c) where papers are seized, he shall seal them and deliver them to the Registrar, and such seals may not be removed except by
the authority of the court.
285. (1) Seizure may be effected on any movable property including>
(a) shares in commercial partnerships<
(b) licences issued by any competent authority as may be established by regulations made by the Minister responsible for justice<
(c) insurance policies<
(d) credit securities and any intellectual or industrial property right>
Provided that on such property the warrant shall have effect as from the date of the service on such authority or such person who
would have issued such movable property. Any transfer made or burthen incumbent on such property after that date shall be ipso jure null as from the date of the service of the certificate of seizure to such person or authority issuing same.
(2) Where in any commercial partnership its statute attributes any right of preference with regard to the transfer of shares, the
shareholders shall be informed of the date when such sale is due to take place and they may exercise the said right during that sale.
(3) When the judicial sale by auction of an insurance policy is due to take place, notice shall be given to the insurance company
of the date of such sale.
286. (1) Such property as is removed from the possession of the debtor, in terms of articles 282 (1) (c) subject to the provisions
of article 293, shall be transferred forthwith to be retained in the hands of the official consignatary in the presence of the court
executing officer, and the official
C 383
C 384
consignatary shall receive and hold such property in an official storage place until such time as that property is sold or the official
consignatary is ordered to do otherwise.
(2) The official consignatary shall issue a receipt, to be signed by him, for such property as would have been seized and removed
from the possession of the debtor and which he would have received>
Provided that the official consignatary may, with the written consent of the Registrar, retain such property in any place other than
the official storage place in such circumstances where, due to the nature or the size of the articles seized, it would not be feasible
to dispose otherwise.
(3) The Minister responsible for justice shall appoint a number of official consignataries to safeguard the property seized as
from such time as the property is held in the hands of the court executing officer to the day when they are sold>
Provided that where the official consignatary is a company or partnership, such company or partnership is to appoint a person who
shall at all times be personally responsible to fulfil the obligations of the official consignatary, and to assume joint responsibility
with the company or partnership>
Provided further that the Minister responsible for justice may by regulations provide for the making of any other such conditions
as he may deem necessary relating to the appointment of a person as an official consignatary or to be personally responsible in terms
of the first proviso to this sub- article.
(4) The Minister responsible for justice shall indicate the official storage places where the seized property is to be stored by
official consignataries from the time when the property is removed by the court executing officer up to the day when it is sold.
(5) The Minister responsible for justice may by regulations provide in relation to the preservation of such property, its release
prior to sale, the procedures connected with the sale thereof, the responsibility pertaining to the official consignatary for the
payment of his fees, and in
Persons who may not act as official
consignataries.
Attendance of the official
consignatary.
Official consignatary to
preserve property seized.
relation to any other matter connected with the preservation, sale, consignment and release of the property seized.
287. An official consignatary who is appointed under this Title may not act when he is either>
(a) the execution creditor<
(b) the husband or wife of the debtor or of the creditor<
(c) the father or mother of the creditor, his daughter or son, or his brother or sister, his uncle or aunt, his father-in-law or
mother-in-law or her husband or his son-in-law or daughter-in-law<
(d) directly or indirectly employed with the creditor<
(e) the person who claims to be the owner of the property seized.
288. At the time of execution of the warrant of seizure under article 282, the official consignatary shall attend together with
the court executing officer to execute the warrant. The court executing officer may seize and remove property without informing the
creditor.
289. (1) The official consignatary shall be responsible for the proper preservation of the property entrusted to him and he shall
not use, nor shall he allow any person to use, such property unless otherwise ordered by the court>
Provided that the debtor may be allowed to use or retain in possession such articles of the property seized as the court may authorise
if the court considers that such articles are normally required by an average household for decent living to maintain the human dignity
of the debtor and his family.
(2) Where the property seized is of a perishable nature, the Registrar shall, without further authorisation, sell the goods seized
and with the profit made from that sale, he shall proceed according to the provisions of article 284.
C 385
C 386
The official consignatary to
290. The official consignatary is bound to exercise for the safe keeping of the property seized, such care as is
act as a bonus exercised by a bonus paterfamilias< if the official consignatary
fails to present such property when called upon to do so, the court shall order him to appear before it to explain his failure to
do so< the official consignatary shall be responsible for damages and interest and the court, after examining the circumstances
of the case, may issue such orders as appear to be appropriate, including the personal arrest of the official consignatary for a
period not exceeding three months, to compel him to present such property. The failure of the official consignatary to present such
property when ordered by the court shall of itself constitute contempt of court in terms of the applicable provisions under this
Code.
Other creditors may not oppose execution.
No identification is to be made of property already seized.
The warrant may be executed on new
articles other than those already seized.
Property not subject to seizure.
291. The creditors of any person, whose property has been seized, may not, for any cause whatsoever, make any opposition to the
execution of the warrant or to the sale of the property>
Provided that it shall be lawful for such creditors to enforce their claim on the proceeds of the sale of the property seized.
292. (1) If, when executing a warrant of seizure, the court executing officer finds that another warrant has already taken place
and that the articles have not been removed, he shall likewise execute the warrant again at the place indicated to him by the creditor.
Identification of the property so seized shall no longer be permitted. The court executing officer shall, at the creditor’s expense,
inform the creditors that on their demand other warrants had been executed by means of the first warrant.
(2) When an official consignatary has already been appointed, and the articles have been removed, no other warrant may be executed
on such articles.
293. (1) The property mentioned hereunder is not subject to seizure>
(a) such clothes for daily wear, bedding and such utensils and furniture as are considered reasonably
necessary for the decent living of the debtor and his family<
(b) personal documents and books relating to the profession of the debtor, of his wife or of his children<
(c) the registers and minute-books of notaries public<
(d) tools and implements necessary for the instruction in or the exercise of any science or of any art of the debtor, of his wife
or of his children<
(e) animals and tools required for agriculture and any fruit either cut or not yet separated from the ground<
(f) aircraft and sea vessels wholly chartered in the service of the Government of Malta<
(g) sacred vestments and vessels which are used in a consecrated church, or belonging to a priest, a religious order or any member
thereof<
(h) any property of any member of the Police Force or of the Armed Forces of Malta being arms, ammunition, equipment, instruments
or clothing used by him in the discharge of his duties>
Provided that any such property as is mentioned in paragraphs (a) to (g) may be seized –
(i) if the execution is demanded in respect of the price of such property<
(ii) if the execution is demanded in respect of rent or ground-rent of the tenement in which such property is kept<
(iii) if the executive title by virtue of which the warrant has been issued specifically condemns the debtor to effect the return
of such property.
(2) The seizure may be effected of unseparated movable property belonging to both debtor and a third party, insofar as no sale
of such property may take place except after their separation.”.
C 387
C 388
Addition of new
Sub-title
in Book Second of the Code
and new articles
294, 305,
307, 308 and 311.
16. Immediately after article 293 in Book Second of the Code there shall be added the following new sub-heading and the following
new articles 294, 305, 307, 308 and 311>-
Sub-title II
OF THE WARRANT OF SEIZURE OF IMMOVABLE PROPERTY
Form of demand by
application.
Duties of the court.
294. (1) The demand for the seizure of immovable property is made by an application.
(2) The application shall contain a detailed description of the property of which the sale by auction is demanded, including the
mode in which the property has been acquired and any burthen attached to the same land and a plan clearly indicating the site.
The provisions of this article apply to ships or other vessels exceeding ten metres in length and to aircraft and such articles shall
also be described in detail, including any rights and encumbrancies thereon.
(3) In the event of a decree as provided in the proviso to sub-article (2) hereof, the procedure to be followed shall be that laid
down in this Sub-title for the judicial sale by auction of immovable property.
305. (1) In the court decree ordering the issue of a warrant of seizure of immovable property, the court shall>-
(a) order the Registrar to appoint experts in terms of article 89 as may be required and to fix a short and peremptory time within
which such appraisments have to be filed and give any such order as may be necessary for the better execution of such appointment<
sale<
(b) appoint a day, time and place for the judicial
(c) order the Registrar to inform the Director of the Public Registry and the Registrar of Lands or any competent authority which
may be appointed according to regulations made by the Minister responsible for justice, about the issuing of the decree on the first
working day thereafter<
Appraisal by debtor.
Expert to be appointed by court,
(d) order the Registrar of the Public Registry to register forthwith the decree in a book kept for the purpose at the Public Registry,
which book shall be accessible to the public.
(2) Such decree shall be served on the debtor.
307. (1) Within twenty days from the time notice of the court decree is served on the debtor, he may file a separate appraisment
and demand that a new appraisal need not be effected.
(2) The sworn appraisement filed by the debtor shall, within five days, be served on the creditor who shall then have fifteen days
to lodge an opposition to it.
(3) When a creditor lodges such opposition to the appraisement filed by the debtor, the court shall, after hearing both parties,
decide whether it shall appoint a new expert or not.
(4) An appraisal of the property to be sold shall always be made before the sale takes place provided that if an appraisement,
made not earlier than twelve months before the judgement that is being executed, has been accepted by the court in its judgement,
the court shall take cognizance of such appraisement and it shall not appoint new experts to effect a new appraisal.
308. (1) The expert shall always be appointed by the court ex officio, according to the panel established in article
C 389
unless agreed 89 and on a rota system, unless the parties shall have already
filed a note submitting the name of an expert agreed on between them, or the appraisement filed in terms of article
307 has been accepted.
(2) The expert shall draft a valuation of the property together with a detailed description thereof, including encumbrancies and
burthens, and file same under oath with the Registrar.
(3) The debtor shall under oath give such information relating to the property as may be required by the Registrar or by the experts,
and the provisions relating to evidence shall apply to the debtor.
C 390
Valuation or appraisement to be sworn by expert.
Taxation and payment
of expert’s fee.
(4) The appraisement may not be contested but the court may, by way of an application, order the correction of any mistake made
in the description.
(5) The expert appointed under this Title shall be remunerated in terms of a tariff to be established according to regulations
made by the Minister responsible for justice.
311. (1) The report containing the valuation or appraisement shall be filed by the expert within the time allowed in the decree
of the court according to circumstances, and be sworn by him in the presence of the Registrar.
(2) Where a sale by auction of immovable property or of rights annexed to immovable property situated in the Island of Gozo or
of Comino, is ordered by any of the superior courts, it shall be lawful for such court to order the expert to swear his report at
the Court of Magistrates (Gozo) in the presence of any of the officers mentioned in paragraphs (a) to (c) of sub-article (2) of article
57, and to deliver the said report, so sworn, to the said officer, to be by him transmitted to the superior court which made the
aforesaid order.
(3) When a sale by auction of immovable property or of rights annexed to immovable property situated in the Island of Malta, is
ordered by the Court of Magistrates (Gozo) it shall be lawful for such court to order the expert to swear his report in the presence
of the Registrar and to deliver the said report, so sworn, to the said Registrar, to be by him transmitted to the Court of Magistrates
(Gozo).
(4) The fee payable to the expert shall be taxed by the Registrar, subject to appeal to the court. Such appeal shall be made by
application by any interested party within one month from the service of the taxed fee. Such fee shall always be paid by the creditor,
saving his right against the debtor for the reimbursement of such fee together with the other expenses of the sale>
Provided that when an appeal is lodged, the creditor shall deposit the fee taxed by the Registrar and the procedings for sale shall
be further proceeded with and brought to a conclusion.”.
17. Immediately after article 311 of the Code, there shall be added the following new sub-heading and articles 312 to 312F>
“Sub-title II
OF THE WARRANT OF SEIZURE
OF A COMMERCIAL GOING CONCERN
C 391
Addition of new
Sub-title III
in Book Second of the Code
and new articles 312 to 312F.
Appointment of day
of sale by auction.
312. (1) The movable or immovable property or the going concerns which are seized from the possession of the debtor, shall be
sold by public auction according to the provisions of this Title.
(2) Such auctions shall be held whenever the need arises, there being a sufficient amount of property to be sold.
(3) The provisions of this Sub-title shall apply both to movable and immovable property and to going concerns. The Registrar and
the public auctioneer shall not in any way be impeded from selling movable property, immovable property or a going concern during
the same auction.
(4) For the purposes of this Sub-title, the meaning of movable property shall be the same as that given in Sub- title I of this
Title and the meaning of immovable property shall be the same as that given in Sub-title II of this Title, saving that in the case
of a going concern the meaning is that given in article 312D but for the purposes of this Title a going concern shall be deemed to
be immovable property.
312A. (1) The demand for the seizure of a going concern shall be made by means of an application to be served on the debtor.
(2) In a decree upholding the demand for the issue of a warrant of seizure of a going concern, the court -
(a) shall order the Registrar to appoint such experts according to article 89 who may be required to>
(i) enlist and evaluate all the assets of the going concern<
(ii) file a report whether or not, considering the debt of the going concern, such going concern
C 392
should be sold or put under administration for a period of time during which it could pay back its debts< and
(b) appoint a short and peremptory time for the filing of such appraisements and report and give such orders as may be necessary
for the carrying out of these instructions>
Provided that where the enlisting and the appraisement of the whole complex would have already been made in the proceedings of a precautionary
warrant of seizure of a going concern, the court shall adopt same and only appoint experts to file a report whether the going concern
should be sold or put under administration.
312B. Following the confirmation on oath of the appraisements and reports, the court shall within a week appoint the application
for hearing and, after hearing the parties, it shall decide whether the judicial sale by auction of the going concern is nevertheless
to be proceeded with or an administrator is to be appointed to manage the going concern until the amount due is paid.
312C. (1) Where the court decides about the holding of a sale, it shall appoint a date, place and time for the sale of the whole
complex as a going concern.
(2) The court shall appoint an administrator to carry on with the administration of the going concern until it is sold>
Provided that where in the proceedings of a precautionary warrant an administrator would have already been appointed, he shall be
confirmed as such.
312D. Articles 308 and 311 shall apply mutatis mutandis to this warrant.
312E. (1) Where the court decides that the going concern shall continue to be administered until payment of the amount due is
effected, it shall appoint an administrator and give such orders and make such provisions which it deems appropriate, taking into
consideration the debt, nature and value of the going concern.
(2) The appointed administrator shall take control of the going concern and he shall have the right to sell and carry on trade in
its day to day business, provided that with regard to any decision of an extraordinary nature he shall be bound to demand the court
for its authorisation.
(3) Nothwithstanding the foregoing provision, if during his appointment the administrator is of the opinion that the going concern
is about to lose its market value, he may demand the court to authorise him to sell the going concern in whole or in part.
(4) The appointed administrator under this article shall be entitled to such payment as the court, in its discretion, may deem fit
that he should receive considering the value of the going concern and the work done in connection with the running of the business.
312F. For the purposes of this Title, the term “going concern” means any kind of commercial enterprise conducting a business
activity and includes, machinery, apparatus, goods, corporeal and incorporeal rights, movable property, immovable property, licences,
copyright and good-will.”.
18. Immediately before article 313, in Part I in Book Second of the Code, for sub-heading “Sub-title II – Of Judicial Sale by Auction” there shall be substituted the following
sub-heading>
“Sub-title IV
OF JUDICIAL SALES BY AUCTION”.
19. Articles 305 to 312 of the Code shall be deleted.
20. For article 313 of the Code there shall be substituted the following>
C 393
Amendment of sub- heading
in Part I in Book
Second of the Code.
Deletion of articles
305 to 312 of the
Code.
Substitution of article
313 of the Code.
“Form of advertisement of sale by auction.
313. The Registrar shall publish regularly in two newspapers, one being in Maltese and the other in the English language, lists
of the judicial sales by auctions which are about to be held and he shall indicate clearly therein the property in such manner that
the public is well informed in order to safeguard the parties’ interests>
C 394
Deletion of articles
314 and 315 of the
Code.
Renumbering
of article 316 of the
Code.
Addition of new articles 315
and 316 to the
Code.
Provided that the debtor, creditor or any other interested person may publish and inform, at their own expense, any particular sale
in any newspaper of their choice or broadcast same over any other broadcasting medium.”.
21. Articles 314 and 315 of the Code shall be deleted.
22. Article 316 of the Code shall be renumbered as article 314.
23. Immediately after article 314 of the Code as renumbered, there shall be added the following new articles 315 and 316>
“Valuation of property
to be sold by auction.
Appraisement of gold or silver
articles to show intrinsic value.
315. (1) Immovable property or rights annexed to such property, or movable property consisting of gold or silver articles, pearls
or precious stones or of other precious articles, and commercial going concerns, shall always be appraised before the sale thereof
by auction.
(2) With regard to other movable property, an appraisement shall only be made if required by the creditor or by the debtor.
(3) An appraisal made in conformity with the provisions of articles 308, 311 and 312C and existing in the records of a sale by
auction shall be accepted by the court to be the appraisement for the purpose of this article.
316. In any appraisement of gold or silver articles, of pearls or precious stones or of other precious articles the expert shall
consider the intrinsic value thereof and the cost of manufacture, together with any distinctive characteristic of the said article
and appraise the total value thereof.”.
Substitution of article
317 of the Code.
24. For article 317 of the Code there shall be substituted the following new article>
“Removal of movable property to place of sale.
317. The official consignatary shall cause the movable property to be removed to the place of sale on the day of the sale where
such property shall be exposed to public view at least two hours before the auction begins.”.
25. In article 318 of the Code, for the words “property may be sold by auction” there shall be substituted the words “movable
property may be sold by auction”.
26. Article 319 of the Code shall be amended as follows>
(a) for sub-article (1) there shall be substituted the following new article>
“(1) The auction shall be, save the exceptions mentioned in the preceding articles, conducted by a public auctioneer in the presence
of the Registrar.”<
(b) immediately after sub-article (2) there shall be added the following new sub-article (3)>
“(3) An offer shall no longer be valid immediately when a higher offer is accepted, even though such higher offer is later declared
to be null.”<
(c) sub-article (3) shall be renumbered as sub-article (4) and there shall be substituted therefor the following new sub-article>
“(4) The public auctioneer or broker shall be entitled to a fee which is taxed by the Registrar in accordance with a tariff to
be established by the Minister responsible for justice.”< and
(d) immediately after sub-article (4), there shall be added the following new sub-article (5)>
“(5) No offer may be accepted if such offer is less than sixty per cent (60%) of the value at which the movable or immovable
property or the going concern has been appraised.”.
27. For article 320 of the Code there shall be substituted the following new article>
C 395
Amendment of article
318 of the Code.
Amendment of article
319 of the Code.
Substitution of article
320 of the Code.
“Bids pro persona nominanda etc., not to be accepted.
320. The auctioneer shall cause that no bid shall be accepted if it is either made pro persona nominanda or by any person who is notoriously incapable of fulfilling the obligations arising out of the adjudication.”.
C 396
Deletion of article
322 of the Code.
Substitution of article
323 of the Code.
28. Article 322 of the Code shall be deleted.
29. For article 323 of the Code there shall be substituted the following>
“Duration of auction.
323. The Minister responsible for justice shall by regulations establish the duration of the auction.”.
Deletion of articles
324 and 325 of the
Code.
Amendment of article
326 of the Code.
Deletion of article
327 of the Code.
Amendment of article
328 of the Code.
Amendment of article
329 of the Code.
Amendment of article
331 of the Code.
Amendment of article
332 of the Code.
30. Articles 324 and 325 of the Code shall be deleted.
31. Article 326 of the Code shall be amended as follows>
(a) in sub-article (1), immediately after the words “for the continuation of the auction” there shall be added the words “on
another day which shall be appointed by the Registrar within two weeks”<
(b) in sub-article (3), for the words “six days” there shall be substituted the words “seven days”< and
(c) immediately after sub-article (4) there shall be added the following new sub-article (5)>
“(5) The court shall hear the parties about the demand for suspension, and it shall not give its decree relating to such application
prior to a deposit having been made of all the expenses with regard to the judicial sale by auction.”.
32. Article 327 of the Code shall be deleted.
33. In article 328 of the Code, immediately after the words “or of ships” there shall be added the words “, or of commercial
going concerns”.
34. In sub-article (1) of article 329 of the Code, for the words “by writ of summons” there shall be substituted the words
“by application”.
35. In sub-article (1) of article 331 of the Code, immediately after the words “annexed to such property” there shall be added
the words “, or of commercial going concerns,”.
36. In article 332 of the Code, for the words “if by leave of court previously obtained he shall” there shall be substituted
the words “if he shall”.
37. For article 333 of the Code there shall be substituted the following>
C 397
Substitution of article
333 of the Code.
“Leave to bid
animo
333. (1) Any person to whom a liquidated debt is
compensandi. owing under any judgment or executive title or deed or other
obligatory writing, may, by an application, apply to the court for leave to bid animo compensandi.
(2) Any person who is intent on bidding animo compensandi shall register his name by means of a note before the commencement of the auction sale by making a sworn declaration before the Registrar
about the reason why he wishes to bid animo compensandi.
(3) Any person bidding animo compensandi may be served notice by any person having an interest in the judicial sale by auction at least two weeks before the date of the sale
and whosoever is not served such notice or is not served notice within such time may exercise the right under article 356.”.
38. For article 334 of the Code there shall be substituted the following>
Substitution of article
334 of the Code.
“Conditional leave to bid animo compensandi.
334. (1) Any bid animo compensandi is made on condition that the bidder shall bind himself to pay the price into court in case it shall be so adjudged by the court.”.
39. For article 335 of the Code there shall be substituted the following>
Substitution of article
335 of the Code.
“Opposition to bids animo
335. Any opposition to an application to bid animo compensandi may only be made after the sale. No opposition
compensandi. may be made before or during the sale.”.
40. Article 336 of the Code shall be deleted.
41. Article 337 of the Code shall be amended as follows>
(a) in sub-article (1), for the words “demand the approval of the proposed set-off, and shall pay into court” there shall be
substituted the words “demand by means of an application accompanied by a lodgment schedule, the approval of the proposed set-off,
and he shall pay into court”< and
Deletion of article
336 of the Code.
Amendment of article
337 of the Code.
C 398
Amendment of article
338 of the Code.
(b) in sub-article (3), for the words “and shall recover the costs of the judicial recognition” there shall be substituted
the words “and shall recover the legal fees and the costs of the judicial recognition”.
42. Article 338 of the Code shall be amended as follows>
(a) for sub-article (1), there shall be substituted the following>
“(1) The aforementioned demand shall be published in the Government Gazette and served on the debtor and all known creditors,
including such persons who shall have sued out any warrant of seizure or garnishee order or impediment of departure, and such persons
as are mentioned in the warrant of seizure which preceded the judicial sale by auction.”<
(b) in sub-article (2), for the words “The persons so served shall be allowed the time of three days” there shall be substituted
the words “Any person who may have an interest and the persons so served shall be allowed the time of twenty days”< and
(c) for sub-articles (3) to (7), there shall be substituted the following sub-articles>
“Condition which may be imposed by court on approval of
set-off.
(3) It shall be lawful for the court, in approving the set-off, to require the purchaser to give sufficient security to pay into
court the price together with interest, in case it shall be so adjudged.
(4) When the court upholds the demand, any person who may have an interest to enter suit may within twenty days file an appeal
by application, which appeal shall be appointed and decided within three months from the date of the decree.
(5) When the Court of Appeal revokes a decision to grant a bid animo compensandi, it shall remit the judicial proceedings to the first court.”.
Substitution of article
339 of the Code.
43. For article 339 of the Code there shall be substituted the following new article>
“Competition of creditors.
339. When there are more than one creditor filing a demand for payment from the proceeds in such manner that a competition of creditors
would have to take place, it shall be the same court to commence such proceedings in terms of articles 416 et sequitur.”.
C 399
44. In the first proviso to sub-article (1) of article 340 of the Code, for the words “any person who has made” and “within
six days” there shall be substituted the words “whosoever makes” and “within seven days ” respectively.
45. For article 342 of the Code there shall be substituted the following new article>
Amendment of article
340 of the Code.
Substitution of article
342 of the Code.
“Restoration of balance
of deposit to debtor.
342. If after payment of the claims of the creditors and of the costs, there still remains a balance, the court shall, upon the
demand of the debtor, order such balance to be restored to him.”.
46. For article 343 of the Code there shall be substituted the following new article>
Substitution of article
343 of the Code.
“Discontinuance of sale
by auction and restoration of unsold property to debtor.
343. If it appears during the sale that a sufficient sum to meet the debts and the costs of the auction has been obtained, the
Registrar shall order the auction to be immediately discontinued. Upon a verbal demand by the debtor, the court shall order that
the unsold property is to be restored to the debtor.”.
47. For article 345 of the Code there shall be substituted the following new article>
Substitution of article
345 of the Code.
“Sale of perishable articles.
345. In the case of seizure of perishable merchandise or other articles which are in a state of progressive deterioration or of
articles which are about to go out of fashion or become technologically obsolete, it shall be lawful for the court, upon the demand
of any person having an interest or of the official consignatary, to order such merchandise or other articles to be sold in such
manner as the court shall deem proper, including the sale to be effected forthwith by the Registrar or by the official consignatary.”.
48. Article 348 of the Code shall be deleted.
Deletion of article
348 of the Code.
C 400
Amendment of article
349 of the Code.
Amendment of article
350 of the Code.
Amendment of article
352 of the Code.
Amendment of article
353 of the Code.
Substitution of article
354 of the Code.
49. In article 349 of the Code, for the word “marshal” there shall be substituted the words “court executing officer”.
50. In article 350 of the Code, for the word “marshal” there shall be substituted the words “court executing officer”.
51. In sub-article (1) of article 352 of the Code, for the words “was obtained.” there shall be substituted the words “was
obtained, in which case the court shall on a demand made by application proceed, after hearing the parties, to declare such transfer
as null and void and to adopt such measures as it may deem necessary.”.
52. Article 353 of the Code shall be amended as follows>
(a) in sub-article (1), immediately after the words “the auction of the immovable property” there shall be added the words
“or of a commercial going concern”< and
(b) in sub-article (2), immediately after the words “The auction of the immovable property” there shall be added the words
“or commercial going concern”.
53. For article 354 of the Code there shall be substituted the following new article>
“Execution of a judgement
of the Court of Magistrates (Malta) on immovable property.
354. (1) When the judgement the execution of which is sought is a judgement given by the Court of Magistrates (Malta), its execution,
insofar as it has to be executed on immovable property or rights attached to immovable property, is to be effected by the Civil Court,
First Hall.
(2) The same rule applies when a demand is made for the execution of two or more judgements, whose total joint amount, not taking
into account any expenses, exceeds the sum of five thousand liri.”.
Amendment of article
355 of the Code.
54. Article 355 of the Code shall be amended as follows>
(a) in sub-article (1) thereof, immediately after the words “his immovable property” there shall be added the words “and
of a commercial going concern”< and
(b) sub-article (2) shall be deleted and sub-article (3) shall be renumbered as sub-article (2) thereof.
55. Article 356 of the Code shall be amended as follows>
(a) in sub-article (3), for the words “is of a going concern” there shall be substituted the words “is of a commercial going
concern”< and
(b) for sub-articles (7) to (9), there shall be substituted the following new article (7)>
“(7) When such action is exercised and the sale is effected, the third party which has acquired possession of the movable thing
in whose favour the property would have been originally adjudicated, who shall not also be the same person in whose favour during
the second sale the property has been adjudicated, shall be paid from the proceeds of the second sale the sum of money which he would
have defrayed together with all expenses made before any other creditor.”.
56. For article 357 of the Code there shall be substituted the following new article>
C 401
Amendment of article
356 of the Code.
Substitution of article
357 of the Code.
“Eviction after adjudication.
357. The adjudication of immovable property as of itself constitutes an executive title and if either the debtor against whom execution
is being sought or a third party occupying the premises without title fails to vacate the premises so adjudicated, the purchaser
shall be entitled, within four months from the adjudication, to seek the issue of a warrant of eviction on the basis of the said
title of adjudication.”.
57. The words of the sub-heading “Sub-title III - Of the Warrant of Imprisonment for Debt” occurring immediately after article 356 of the Code, shall be deleted.
58. For the words of sub-heading “Sub-title IV - Of the Executive Garnishee Order” occurring immediately before article 375
of the Code, there shall be substituted the words “Sub-title V - Of the Executive Garnishee Order”.
59. For article 376 of the Code there shall be substituted the following new article>
Deletion of words of sub-heading
in the Code.
Substitution of sub-heading
in the Code.
Substitution of article
376 of the Code.
“Contents of garnishee order.
376. (1) The creditor shall, in the application for the issue of a garnishee order, correctly state the name and surname of
the debtor, giving other particulars concerning the debtor as may be ordered by the Minister responsible for
C 402
Amendment of article
377 of the Code.
Substitution of article
378 of the Code.
justice for the purpose of the identification of the debtor by the garnishee.
(2) The order shall>
(a) state the name and surname of the debtor and other particulars included in the application for the purpose of identification
of the debtor, including, where possible, the identity card number or the company registration number<
(b) state the amount or thing due<
(c) state the title under which the creditor sues out execution<
(d) enjoin the garnishee not to pay or deliver up to the debtor, or any other person, such moneys or things as may be in his hands
but which belong to the debtor, under penalty of payment of damages and interest< and
(e) enjoin the garnishee to lodge, at the debtor’s expense within twenty-one days from the date of service of the warrant, through
the Registrar any moneys or things belonging to the debtor, as attached by the order.
(3) The lack of any of these particulars in the garnishee order, shall render the said order to be ipso jure null.”.
60. In sub-article (1) of article 377 of the Code, for the words “by the marshal of a copy thereof to the garnishee” there
shall be substituted the words “of a copy thereof, by the court executing officer, to the garnishee or by such electronic means
as may be prescribed by the Minister responsible for justice”.
61. For article 378 of the Code there shall be substituted the following new article>
“Declaration by garnishee.
Time for such declaration.
378. A garnishee who, although being in possession of moneys or other articles, belonging to the debtor, or which are due to the
debtor, which may have been attached by means of the order, and who does not effect the deposit referred to in article 376 within
such time as may be laid down in the order, shall be responsible for ensuing damages and interest in favour of the creditor and the
court may, upon application
being made for that purpose by the creditor, issue such orders as may be required, including his personal arrest for a period not
exceeding three months, in order to force him to lodge such property.”.
62. For article 379 of the Code there shall be substituted the following new article>
C 403
Substitution of article
379 of the Code.
“Garnishee may be enjoined to deposit.
379. (1) In the case of attachment of moneys, the garnishee may before lodging such moneys in court retain the costs in respect
of such lodgment and, in the case of attachment of other movable property, the garnishee shall have a privileged claim over the property
so lodged in respect of such costs.
(2) In all cases, the execution creditor and the debtor shall be notified of any such lodgment into court.”.
63. Article 380 of the Code shall be deleted.
64. Article 381 of the Code shall be amended as follows>
(a) in sub-article (1), paragraph (c), immediately after the word “charitable grant” there shall be added the words “or donation”<
(b) in sub-article (1), for paragraph (f) there shall be substituted the following paragraphs>
“(f) moneys which have been made available to the debtor by deed of loan for the building, construction and maintenance of houses
intended as a main dwelling place for the debtor<
(g) overdraft banking facilities excluding credit cards by means of which commercial going concerns run by the debtor are being
operated<
(h) bank guarantees and letters of credit.”< and
(c) sub-article (2) shall be deleted, and sub-articles (3) and
(4) shall be renumbered as sub-articles (2) and (3) respectively.
Deletion of article
380 of the Code.
Amendment of article
381 of the Code.
C 404
Amendment of article
382 of the Code.
Substitution of article
383 of the Code.
65. In sub-article (1) of article 382 of the Code, for the words “the court may, on the application by any creditor, allow the
issue of a garnishee order” there shall be substituted the words “the issue of a garnishee order shall be applicable”.
66. For article 383 of the Code there shall be substituted the following new article>
“Garnishee order may not be extended.
383. A garnishee order may not be extended and shall remain in force up to such time as it is revoked by a decree issued by the court.”.
Substitution of sub-heading
in the Code.
Amendment of article
384 of the Code.
Substitution of sub-heading
in the Code.
Substitution of article
385 of the Code.
67. For the words of sub-heading “Sub-title V - Of the Warrant of Ejectment or Expulsion from Immovable Property” occurring
immediately before article 384 of the Code, there shall be substituted the words “Sub-title VI - Of the Warrant of Ejectment or
Expulsion from Immovable Property”.
68. In article 384 of the Code, for the words “the marshal” wherever they occur, there shall be substituted the words “the
court executing officer”.
69. For the words of sub-heading “Sub-title VI - Of the Warrant In Factum” occurring immediately before article 385 of the Code, there shall be substituted the words “Sub-title VII - Of the Warrant In Factum”.
70. For article 385 of the Code there shall be substituted the following new article>
“Warrant
in factum.
385. (1) In the execution of a warrant in factum, the court executing officer shall proceed in such manner as ordered in the warrant.
(2) The warrant in factum shall contain the order that the party against whom the warrant is issued is to be conveyed to prison, in order to be therein kept
at his own expense, until the performance of the act ordered by a judgment or until such time as the court may deem necessary to
ensure such performance.
(3) The warrant may not be issued other than by an explicit order of the court to be issued on a demand made by application by
the creditor.
(4) The court shall only issue the warrant if it is satisfied that the creditor does not have any other means of execution available.”.
71. Article 387 of the Code shall be amended as follows>
(a) in sub-article (1), for the words “the marshal” and “for seven days” there shall be substituted the words “the court
executing officer” and “for four days” respectively<
(b) in sub-article (2), for the words “seven days” there shall be substituted the words “four days”< and
(c) in sub-article (3), for the words “The marshal” there shall be substituted the words “The court executing officer”.
72. Immediately after article 388 of the Code, there shall be substituted the following new sub-heading>-
“Sub-title VIII
OF THE WARRANT OF EXECUTIVE ARREST OF AIRCRAFT OR SEA VESSELS”.
73. Immediately after the new sub-heading of Sub-title VIII, there shall be added the following new articles 388A and 388B>-
C 405
Amendment of article
387 of the Code.
Addition of new sub-heading in the Code.
Addition of articles
388A
and 388B to the
Code.
“Application for the
issue of a warrant.
Court to decide about the sale
388A. An executive warrant of arrest of aircraft or sea vessels is effected by application in terms of articles 858 and
860.
388B. (1) The court shall, when a demand is made for the issue of a warrant of arrest, establish whether it shall
or fixes time- order the sale of the said article or to fix a time limit within
payment.
which the debtor is to pay the amount due.
(2) When the court orders such sale, it shall proceed according to the procedures laid down in the provisions relating to sale.
(3) When the court fixes a time limit within which the debtor is to pay, it shall order the warrant to be definitely in force until
payment of the amount due is effected.
(4) When the said time limit passes without any effect the court shall, on a demand to be made by the interested party, order the
sale to take place according to the provisions of sub-article (2) of this article.”.
C 406
Addition of new sub-heading in the Code.
Addition of article
388C to the Code.
74. Immediately after article 388B of the Code, there shall be added the following new sub-heading>-
“Sub-title IX
OF THE WARRANT IN PROCINCTU ”.
75. Immediately after the new sub-heading of sub-title IX, there shall be added the following new article 388C>-
“Court may issue
other orders.
388C. (1) Subject to the other provisions contained in Title VII of this Code, the court may on demand of the party, issue such
orders to the Registrar as it may deem necessary for the orders contained in the judgement to be executed>
Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after
the court is satisfied that the creditor does not have any other means of execution.
(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given
thereon after that the debtor has been served notice thereof, to which he may file a reply within four days.”.
Substitution of article
830 of the Code.
76. For article 830 of the Code there shall be substituted the following new article>
“Precautionary acts.
830. (1) The precautionary acts referred to in the last preceding article are the following>
(a) warrant of description< (b) warrant of seizure<
(c) warrant of seizure of a commercial going concern<
(d) garnishee order<
(e) warrant of impediment of departure<
(f) warrant of arrest of aircraft and sea vessels< (g) warrant of prohibitory injunction.
(2) (a) Saving the provisions of article 870 of this Code and of article 357 of the Merchant Shipping Act, such acts mentioned
in sub-article (1) shall be rescinded, if the party against whom the act is issued makes such deposit or gives such security as,
in the court’s opinion, according to the circumstances of the case, may be sufficient to safeguard the rights or claims stated
in the act, or if it is shown that a judicial act accepting liability as provided in sub-article (3) has been filed in the proper
registry.
(b) Notwithstanding that a deposit is made or security is given as aforesaid, the time limits established in this Title on the
creditor to bring forward his action shall continue to apply.
(c) Such time limits shall run from the date of the issue of the precautionary act, and failure by the creditor to institute proceedings
within the said time limits shall entitle the debtor to withdraw the deposit or cancel the security.
(3) Where a precautionary act has been issued against any person, or such as to affect any property of such person, to secure a
claim for damages, and a locally registered insurance company or local bureau thereof, as established in the Motor Vehicles (Third
Party Risks) Ordinance, such person or company shall by means of a judicial act, filed in the registry of the said court, within
ten days from the date of the insured person’s demand, declare that he or the company is accepting liability to pay all sums that
may be due for such damages, in connection with the claim contained in that act if such insured person is found to be responsible
for such damages –
(a) the insurer or local bureau, as the case may be, shall be liable to pay all sums that may be due for damages arising as aforesaid<
(b) the claim for such damages may be pursued against the insurer or the local bureau directly< and
(c) the precautionary act against such person shall be rescinded.
(4) No precautionary act as provided in sub-article (3) shall be issued against the insured if the person intending to sue out the
warrant is cognizant that the insurer or the local
C 407
C 408
Substitution of article
831 of the Code.
bureau has issued to the insured a valid insurance certificate accepting liability for the payment of damages< and in such case
the claim for such damages may be pursued against the insurer or the local bureau or agent, as the case may be, directly.”.
77. For article 831 of the Code there shall be substituted the following new article>
“Application for
issue of warrant.
831. (1) The demand for the issue of any of the said acts shall be made by an application prepared by the applicant and containing,
under pain of nullity of the act, other than further details which may be prescribed by regulations>-
(a) the origin and nature of the debt or claim sought to be secured< and
(b) when the right sought to be secured by the act is a debt, or a demand which may be satisfied by the payment of a sum of money,
the amount of such demand.
If the case has already been filed in court, such demand may specify and include all judicial costs.
(2) The application shall be confirmed on oath by the applicant>
Provided that where in an application there is more than one applicant demanding the issue of any of the precautionary acts mentioned
in sub-article (1) of article 830 against the same respondent, the oath shall be taken by at least one of the applicants.
(3) Any of the warrants or order mentioned in article 830 shall be issued by the court>
Provided that, where in the opinion of the Registrar the signature of a judge or magistrate empowered to issue a warrant of seizure
or a garnishee order or a warrant of impediment of departure cannot be obtained within a reasonable time and that delay may be prejudicial,
the said warrants or order may be issued over the signature of the Registrar personally after having first obtained verbal authorisation
from the judge or magistrate to do so. In this case, the judge or magistrate is to append his own signature under that of the Registrar
at the earliest opportunity to confirm
that he had given the said verbal authority or, if it is not possible for the Registrar to obtain such verbal authority, the Registrar
shall under his authority issue the said warrant or order over his signature, subject to the ratification of such action by a judge
or magistrate at the earliest opportunity.”.
78. Article 832 of the Code shall be deleted.
79. For article 833 of the Code there shall be substituted the following new article>
C 409
Deletion of article
832 of the Code.
Substitution of article
833 of the Code.
“Demand for the issue of a warrant
under article
166A.
833. (1) Where an executive judicial letter is filed and sworn according to article 166A, there may also thereupon be sworn
and filed the precautionary warrants referred to in article 830 (1) (a), (b) and (d).
(2) So however that when such executive judicial letter is filed, the applicant shall file a cause within twenty days from the
date of filing of a full or partial note of contestation or within sixty days from the date of the issuing of a warrant according
to which date first occurs.”.
80. For article 834 of the Code there shall be substituted the following new article>
Substitution of article
834 of the Code.
“Notice of execution of warrant.
834. The court executing officer shall, at the earliest time possible, serve notice in writing to the applicant, the lawyer or
the legal procurator whose signature is subscribed on the application, of the execution of the warrant or order.”.
81. Article 835 of the Code shall be deleted.
82. Article 836 of the Code shall be amended as follows>
(a) for sub-articles (2), (3) and (4), there shall be substituted the following sub-articles>-
(2) The person making the application according to sub-article (1) shall, together with the application, file in writing all submissions
to be made together with all documents in support of the demand that is being filed.
(3) The application, except for any application in terms of sub-article (1)(a), shall be served on the opposite party who may, within
seven days from the service, file a note
Deletion of article
835 of the Code.
Amendment of article
836 of the Code.
C 410
Amendment of article
837 of the Code.
containing all submissions to be made together with all documents in support of the demand that is being filed.
(4) The court shall decide the application with urgency or in camera or after hearing the advocates of the parties, if it deems fit, provided that not more than one sitting may be fixed for such purpose.”<
and
(b) sub-article (8) shall be amended as follows>-
(i) in paragraph (a) thereof, immediately after the words “if the applicant” there shall be added the words “, without any
valid reason,”< and
(ii) in paragraph (b) thereof, for the words “if, on the demand” there shall be substituted the words “if, on demand”.
83. Article 837 of the Code shall be amended as follows>
(a) for sub-article (1), there shall be substituted the following>
“(1) The warrants of description, and impediment of departure for the purpose of a reference to the oath of the opposite party
or for the purpose of securing the enforcement of a judgment not being for the payment of an acknowledged amount, may be issued by
the Court of Magistrates (Malta), or the Court of Magistrates (Gozo) in its inferior jurisdiction, but may not be issued by the Small
Claims Tribunal>
Provided that the warrant of impediment of departure of a vessel or of any other sea going craft, or of aircraft, may neither be issued
by the Court of Magistrates nor by the Small Claims Tribunal.”<
(b) in paragraph (b) of sub-article (4), for the words “her clearance< and” there shall be substituted the words “her
clearance.”<
(c) paragraph (c) of sub-article (4) shall be deleted< and
(d) in paragraph (b) of sub-article (5), immediately after the words “on which such person is enrolled” there shall be added
the words “or by the officer commanding the vessel on which such person is enrolled,”.
84. For article 838 of the Code there shall be substituted the following new article>
C 411
Substitution of article
838 of the Code.
“Precautionary acts.
838. The court may, when any party makes an application before it which is served on the other party, give any order as may be
required so as to prevent any damage or deterioration being caused to the things described in the precautionary act.”.
85. Article 838B of the Code shall be amended as follows>
(a) in the marginal note to article, for the words “until final determination” there shall be substituted the words “until
the cause becomes res judicata”<
(b) the whole article shall be renumbered as sub-article (1) thereof and for the words “until the final determination of the
cause” there shall be substituted the words “until the cause becomes res judicata.”< and
(c) immediately after sub-article (1) as renumbered, there shall be added the following new sub-article>
“(2) Notwithstanding the provisions of sub-article (1) of this article, precautionary warrants issued under article 830 (1) become
executive warrants after that the cause becomes res judicata or when in accordance with article 166B such judicial letter constitutes an executive title, so however that>-
(a) in the case of a warrant issued under article
830 (1) (b) (c) and (d), the creditor shall file a note within twenty days in the acts of the same warrant and demand an extension
or reduction of the effects of the warrant to an amount equivalent to the legal costs, interest and the difference in the principal
amount due in terms of the judgement, and such note is to be served upon the debtor and such persons as may have any interest therein<
(b) in the case of a warrant issued under article
830 (1) (a), (e) and (f), the creditor shall file an application under the provisions of article 389 within twenty days from the judgement.”.
86. For article 843 of the Code there shall be substituted the following new article>
Amendment of article
838B of the Code.
Substitution of article
843 of the Code.
C 412
“Time within which
to bring action.
843. (1) The applicant is bound to bring the action in respect of the right stated in the warrant within twenty days from the
issue of the warrant>
Provided that where the issue of the warrant is demanded by any spouse against the other spouse, and the spouse issuing the warrant
has already filed an application to institute the cause before the court, the time limit herebefore mentioned shall commence running
from such date when the application is upheld, provided that the warrant shall cease having its effect immediately upon the application
being withdrawn or abandoned.
(2) If the applicant fails, without just cause, to bring such action, the effects of the warrant shall cease and he shall be liable
for all damages and interest.”.
Substitution of article
845 of the Code.
87. For article 845 of the Code there shall be substituted the following new article>
“Applicability of articles
278, 279 and 282.
845. The provisions of articles 278, 279 and 282, shall apply to the execution of a warrant of description.”.
Substitution of article
846 of the Code.
88. For article 846 of the Code there shall be substituted the following new article>
“Warrant of seizure.
Official consignatary.
Applicability of articles
278 to 304,
842 to 844.
846. (1) The warrant of seizure of movable property shall, other than the details referred to in article 276, also contain an
order to the Registrar to seize from the debtor such articles or article from the place therein indicated.
(2) When a demand is made for the removal of the seized articles the court shall appoint an official consignatary.
(3) The provisions of articles 278 to 304 and articles 842, 843 and 844, shall apply to warrants of seizure.”.
Amendment of article
847 of the Code.
89. Article 847 of the Code shall be amended as follows>
(a) for the words “without a previous judicial acknowledgment of the debt or claim>” there shall be substituted the words
“without a previous judicial acknowledgment or rendering as an executive title of the debt or claim>”<
(b) in the proviso thereto, for the words “Provided that in the case of ships, other vessels, aircraft, perishable goods or other
deteriorating assets,” there shall be substituted the words “Provided that in the case of perishable goods or other deteriorating
assets,”< and
(c) in the said proviso, the words “plaintiff’s claim, the defence raised against such” shall be deleted.
90. In article 848 of the Code for the words from “unless, where the debt” to “such debt or claim.” there shall be substituted
the words “unless the warrant is sued out accompanied by a demand that the credit or claim are judicially acknowledged and the
debt or claim exceeds five hundred liri, or the demand for such warrant is for an article which, as stated, is property belonging
to the person suing out the warrant.”.
91. Immediately after article 848 in Book Third of the Code, there shall be added the following new sub-heading and the following
new articles 848B and 848C>-
“Sub Title III
OF THE WARRANT OF SEIZURE OF A COMMERCIAL GOING CONCERN
C 413
Amendment of article
848 of the Code.
Addition of New
Sub-title in Book Third of the Code and
new articles 848B
and 848C.
“Scope of warrant.
Court to appoint administrator and expert.
848B. (1) The effect of a precautionary warrant of seizure of a commercial going concern is to preserve the totality of the
assets of the going concern, including licences and good-will, to order that same is not sold in part or in whole and are to be concurrently
kept in business, provided that in any case the court shall not accept a demand for the issuing of a warrant if it is satisfied that
there are other means to safeguard the amount due.
(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to protect the rights
belonging to applicant who, prima facie, appears to have such rights.
(3) The provisions of articles 840, 842, 844 and
848 shall apply to this warrant.
848C. (1) When a demand is made for the issue of this warrant the court shall, after hearing the parties, appoint an administrator
and in order to effect such action it shall consider whether to allow the going concern to continue being
C 414
Substitution of sub-heading
in the Code.
Amendment of article
849 of the Code.
run by the debtor or by such persons as may be entrusted by the debtor with the assistence of the administrator, or that an administrator
is appointed who in the opinion of the court has the necessary qualifications to run and administer the going concern on his own.
(2) The court shall appoint an expert under article
89 and establish a short and peremptory time within which there shall be filed an itemized list, to be confirmed on oath, of the value
of the whole property forming the capital of the commercial going concern.
(3) The appointed administrator shall be responsible for the commercial going concern and shall have the right to sell and administer
the ordinary running of the concern provided that for any decision of an extraordinary nature he shall file a demand in court for
the granting of such authorisation.
(4) The administrator may, if he is of the opinion that the going concern will incur a market loss in its value, demand the court
either to authorise him to sell the whole going concern or any part thereof.
(5) The administrator appointed under this article shall have the right to such payment as the court may, in its discretion, be
of the opinion that is due to him in consideration of the value of the going concern and of the activity undertaken with regard to
the running of the business.”.
92. For the words of the sub-heading “Sub-title III” occurring in Title VI of Book Third immediately before article 849 of
the Code, there shall be substituted the sub-heading “Sub-title IV”.
93. For the proviso to article 849 of the Code there shall be substituted the following>
“Provided that where the garnishee is a bank, a precautionary garnishee order shall not apply to money payable by the bank in execution
of any guarantee given by the bank that it will effect payment on the demand of the person in whose favour the banker’s guarantee
is made out< and in any such case, notwithstanding the garnishee order, the bank shall have power to pay out or otherwise dispose
of any such money as free from any garnishee order and shall also be entitled to withdraw any such money from any court or other
place, or from any person, into which, or with whom, it
may have been lodged or deposited, and it shall be the duty of the Registrar of such court or other person in possession or having
control over such money to return it forthwith to the bank.”.
94. In sub-article (2) of article 851 of the Code for the words “in articles 831 and 832” there shall be substituted the words
“in sub-article (2) of article 831”.
95. For the sub-headings “Sub-title IV” and “Of the Warrant of Impediment of Departure” in Title VI of Book Third of the
Code, there shall be substituted the following>
“Sub-title V
OF THE WARRANT OF EXECUTIVE ARREST OF AIRCRAFT OR SEA VESSELS”.
96. Articles 855 to 870 of the Code shall be deleted.
97. Immediately after new Sub-title V of the Code there shall be added the following new articles 855 to 863>-
C 415
Amendment of article
851 of the Code.
Substitution of sub- headings
in Book Third of the
Code.
Deletion of articles
855 to 870 of the
Code.
Addition of new articles
855 to 863 to the
Code.
“Warrant of arrest of aircraft and sea vessels.
Warrant to have effect both
855. A warrant of arrest of any aircraft or of any sea going vessels having a length exceeding ten metres may solely be issued
to secure a debt or claims which could be frustrated by the departure of the said ship or aircraft and no other warrant may be issued
against them unless it is a warrant of arrest, and as regards a sea vessel whether such vessel is at sea or at some other place.
856. (1) The warrant of arrest shall have the effect to seize the aircraft or sea vessel, having a length exceeding
to seize and to ten metres, from the debtor and also to attach the same in the
craft.
hands of the authority where the property is, and also to order that the same shall not release such aircraft or sea vessel or allow
the debtor to divest himself in any way from the same in whole or in part or to give or surrender to any person any rights on the
same.
(2) The warrant is executed for all effects of the law when notice is served on the executive officer of the authority who has
in his hands the aircraft or the sea vessel.
C 416
The authority in charge of
857. (1) The authority who has in its hands or under
the craft to be its control the aircraft or the sea going vessel against which
considered official consignatary.
Warrant to be sued out
on appropriate form.
Warrant available where claim is not less than Lm
5,000.
Statement to be contained
such warrant of arrest has been issued shall, for all purposes of the law, be considered to be the official consignatary according
to the provisions of articles 286, 287, 288, 289 and
290.
(2) The said authority shall take all necessary measures to display the court order for the general attention of third parties.
858. A warrant of arrest shall be sued out by means of an application on a form to be prescribed by the Minister responsible for
justice, on which form there shall be included a court decree by virtue of which the necessary orders are given and issued.
859. A warrant may be demanded and obtained in security of a debt or any other claim whatsoever amounting to not less than five
thousand liri.
860. The application for the issue of a warrant shall,
in application. under pain of nullity, state in a clear manner all particulars,
the name of the authority in whose hands the craft is and the
place where the craft is to be found.
Penalty in case of malicious demand for warrant.
Security for payment
of penalty, etc.
Ships or vessels not subject
861. Where it is found that the warrant was obtained upon a demand maliciously made, the penalty in terms of sub-article (8) of
article 836 shall not be less than five thousand liri.
862. It shall be lawful for the court, on good cause being shown, upon the demand by application by a person whose ship, vessel
or aircraft is detained, by the master of the ship or vessel, by the captain of the aircraft or by any person being in charge thereof
or by its agent, to order the party suing out the warrant to give, within a time fixed by the court, sufficient security, in an amount
not less than five thousand liri, for the payment of the penalty, damages and interest and, in default, to rescind the warrant.
863. (1) No warrant shall be issued against any ship or vessel wholly chartered in the service of the Government
to the issue of of Malta or employed in any postal service either by the
a warrant.
Government of Malta or by any other government.
of war.
(2) No warrant shall be issued against any ship
C 417
(3) A warrant of arrest of a ship or vessel shall, on an application by the Malta Maritime Authority, be rescinded if the court
is satisfied that because of the nature of its cargo or of its length or draught or other circumstances concerning safety, navigation
or port operation, it is advisable that the ship or vessel should leave port without delay.”.
98. For the sub-headings “Sub-title V” and “Of the Warrant of Prohibitory Injunction” in Title VI of Book Third of the
Code, there shall be substituted the following>
“Sub-title VI
OF THE WARRANT
OF PROHIBITORY INJUNCTION”.
99. For articles 873 to 876 of the Code, there shall be substituted the following new articles>-
Substitution of
Sub-title
in Book Third of the Code.
Substitution of articles
873 to 876 of the
Code.
“Object of warrant.
Inquiry of court.
873. (1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might
be prejudicial to the person suing out the warrant.
(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right
of the person suing out the warrant, and that prima facie such person appears to possess such right.
(3) The court shall not issue any such warrant against the Government or authority established by the Constitution or any person
holding a public office in his official capacity unless the authority or person against whom the warrant is demanded confirms in
open court that the thing sought to be restrained is in fact intended to be done and the court is satisfied, after hearing the explanations
given, that unless the warrant is issued the prejudice that would be caused to the person suing out the warrant would be disproportionate
when compared with the public doing the thing sought to be restrained.
(4) If on an application, it is proved to the satisfaction of the court that subsequent to the issue of the
C 418
Warrant to secure
warrant of prohibitory injunction the person restrained has acted directly or indirectly in breach of the court’s order, the court
shall, without prejudice to any other action competent to it at law, at a request of applicant, condemn the person against whom the
warrant had been issued to remedy what was committed in breach of its order and to authorise in default the applicant to carry out
such remedial works as the court may direct at the expense of the person restrained.
874. (1) A warrant of prohibitory injunction may also
debt or claim. be demanded by a creditor to secure a debt or any other claim
amounting to not less than five thousand liri. The object of such a warrant is to restrain the debtor from selling, alienating, transferring
or disposing inter vivos such property as may be indicated in the application by onerous or gratuitous title or in any manner creates a burthen or real and,
or personal rights< provided that such a warrant shall not apply to the constitution of any right on, or alienation or transfer
of any property made pursuant to a court order, or over bank guarantees and letters of credit.
(2) Where a warrant prohibits the sale, alienation, transfer or other disposal of immovable property the application shall contain
all the particulars relating to the person against whom it is directed that are required by law in respect of the registration of
a transfer of immovable property by such person in the Public Registry. Where the warrant refers to specific immovables, the application
shall describe them in the manner provided for in the Public Registry Act, in respect of notes of enrolment.
(3) The warrant referred to in sub-article (2) shall upon its issue and at the expense of the applicant, be served by the Registrar
within twenty-four hours on the Director of the Public Registry and the Land Registrar or on such authority as may be nominated by
the Minister responsible for justice, who shall forthwith register the same in books kept for the purpose. Such books shall be indexed
and accessible to the public. It shall also be served upon any person indicated by the applicant.
(4) Upon registration of the warrant referred to in sub-article (2) by the Director of the Public Registry, any future sale, alienation,
transfer or disposal of immovable property to which the warrant refers shall be void and to no effect.
Execution of warrant.
Applicability of
certain articles.
(5) Without prejudice to the provisions of article
836, the warrant referred to in sub-article (2) shall unless previously revoked or otherwise ceases to be in force, continue to have
effect for a period of one year from the date of final judgment in favour of the creditor in his action for the recovery of the debt
or claim referred to in sub-article (1).
(6) Where a warrant prohibits the sale or transfer of the shares in a commercial partnership, notice shall also be served on the
Registrar of Companies and from the date of such service any transfer of shares shall be null.
875. (1) The application shall be served on the party against whom it is issued who shall file a reply thereto within ten days>
Provided that the court may, in urgent cases, reduce the said period in this sub-article. In default of opposition, the court may
accede to the demand.
(2) The court may initially issue provisionally a warrant for a short period under such terms and conditions as it may deem necessary
according to the case, and subsequently decide about the matter in a definitive manner.
(3) The court shall, after appointing the application for hearing, decide on its merits after receiving any evidence it deems fit,
within the shortest time possible but not any later than one month from the day when the warrant had been filed and confirmed on
oath.
876. The provisions of articles 829 and 844 shall apply to the warrant of prohibitory injunction.”.
C 419
100. The Court and Tribunals Procedures Act, 2002 shall be amended as follows>
(a) paragraph (a) of article 6, articles 20 to 23, 54, 56, 61,
63, 65 to 68, 71, 78 to 83, 87, 164, 180, 181, 187 and 192 shall be deleted<
(b) articles 90, 93 to 129, 137 to 148, 165 to 171 and 173 to
184 shall be deleted.
Amendment of Act
XXXI of 2002.
C 420
General amendment of articles
291, 294, 297, 299,
301, 303, 312 and 345 of the Code.
Transitory provision.
101. In the English text of articles 291, 294, 297, 299, 301, 303,
312 and 345 of the Code, for the word “consignatary” wherever it appears there shall be substituted the word “consignee”.
102. (1) The effects of this law apply to new proceedings which shall come into force by virtue of the same law. Precautionary
and executive warrants which have been commenced and which are still pending shall remain to be valid and there shall apply in their
regard the law as herebefore applicable.
(2) The provisions of this Part shall have effect on new proceedings to be filed. Precautionary and executive warrants which have
been commenced and which are still pending shall remain to be valid.
The main object of the Bill is to reform the operative way of executive and precautionary warrants in Court and to introduce novel methods and measures in order to have the execution of judgments and the protection of the rights of the parties in the judicial process better protected and so as to introduce simpler instruments and means which are more efficient and efficacious.
Ippubblikat mid-Dipartiment ta’ l-Informazzjoni (doi.gov.mt) — Valletta — Published by the Department of Information (doi.gov.mt) — Valletta
Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press
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