ENFORCEMENT OF

JUDGMENTS
Introduction

 Where there is a failure or refusal to

comply with any judgment or order of the
court, it becomes necessary to enforce
the judgment or order by the use of one
or more of the court processes.
 The term enforcement refers to the
manner in which a litigant can compel the
obedience/performance of a judgment or
order against/by the other party.

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Introduction

 The terms ‘enforcement’ and ‘execution’

are often used interchangeably.
 However, the term ‘execution’ is normally
used in a restrictive sense to denote
enforcement by way of writs of execution
which include –
 writ of seizure and sale
 writ of possession
 writ of delivery – O46 r1(1) ROC

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2/6/2018
Time limit

 Pursuant to s 6(3) of the Limitation Act

1953, the limitation period for the
enforcement is 12 years.
 An action upon any judgment shall not be
brought after the expiration of twelve years
from the date on which judgment became
enforceable and no arrears of interest in
respect of any judgment debt shall be
recovered after the expiration of six years from
the date on which the interest became due
 Daud v Ibrahim [1961] 27 MLJ 43

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When leave is necessary

 O46 r2(1) ROC provides that a writ of

execution to enforce a judgment or order
may not issue without leave of the court in
the following circumstances:
 where six years or more have lapsed since the date
of the judgment or order;
 Tio Chee Hing v Chung Khiaw Bank [1981] 1 MLJ 227
 where any change has taken place, whether by
death or otherwise, in the parties entitled or liable
to execution under the judgment or order;

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When leaveis necessary

 where the judgment or order is against the assets

of a deceased person coming to the hands of his
executors or administrators after the date of the
judgment or order, and it is sought to issue
execution against such assets;
 where under the judgment or order any person is
entitled to relief subject to the fulfillment of any
condition which it is alleged has been fulfilled;
 where any movable property sought to be seized
under a writ of execution are in the hands of a
receiver appointed by the Court.

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When leave is necessary
 An application for leave to issue a writ of
execution is made by way of ex parte Notice
of Application in Form 88 and supported by
affidavit – O46 r3(1) & (2) ROC
 The court hearing the application –
 may grant leave; or
 may order that any issue or question, which may
determine the rights of the parties, be tried; and
 may impose such terms as to costs or otherwise as
it thinks just - O46 r3(3) ROC

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Issue of writ
 The issue of a writ of execution takes place
on it being sealed by an officer of the Registry
– O46 r4(1) ROC
 Before such a writ is issued a praecipe
[request] in one of the forms in Form 92
[Form 82] must be filed – O46 r4(2) ROC
 The praecipe must be signed by the solicitor
of the judgment creditor (JC)/execution
creditor (EC) or by the latter himself – O46
r4(3) ROC

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Execution against government

 S 33(4) of the Government

Proceedings Act 1956 provides that
there can be no execution against
the government.

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 Enforcement of money judgments
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 Under the ROC 1980, O45 r1(1)

provides that money judgments
may be enforced by:
 writ of seizure and sale
 garnishee proceedings
 charging order
 appointment of receiver
 where O45 r5 ROC applies, an order of
committal
 Writ of seizure and sale (WSS)
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 This mode of enforcement is applicable to

immovable and movable properties.
 It is provided for under O47 ROC.
 WSS is in Form 84 – O45 r12(1) ROC
 It commands the sheriff to seize and sell the
property of the judgment debtor(JD)/execution
debtor (ED) to such an extent as is necessary to
satisfy the judgment sum.
 After the seizure has been made by the sheriff, any
alienation of the property by the JD/ED by way of
sale, gift, mortgage or otherwise shall be void
against the sheriff and any person on whose behalf
the property is seized.
12
Writ of seizure and sale (WSS)
 Immovable property - procedure
 O47 r6 ROC provides for the relevant
procedure –
1) Seizure shall be made by an order prohibiting the
judgment-debtor from transferring, charging or
leasing such property or interest.
2) A copy of the order shall be served on the judgment-
debtor and one or more copies, as the case may
require, shall be issued to the judgment-creditor in
order that he may present the same, in compliance
with the provisions of any written law relating to such
land, for registration at the Registry of Titles or Land
Office whereat the land or interest in land specified in
such order is registered;
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Writ of seizure and sale (WSS)
 Immovable property - procedure
No prohibitory order issued under this rule shall affect any
3) immovable property
or registered interest therein and no immovable property or registered interest
therein shall be deemed to have been seized until such prohibitory order shall
have been registered as provided by any written law relating to such land;
4) Any prohibitory order shall upon the expiration of six months from the date
thereof cease to affect the immovable property or registered interest therein
specified in such order;
5) Upon the application of any judgment-creditor on whose application a
prohibitory order has been issued, the prohibitory order may be extended for
a period of six months
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Writ of seizure and sale (WSS)
 Immovable property - sale
 O47 r7 ROC provides for the
method the property is to be sold.
 Writ of seizure and sale (WSS)
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 Movable property
 The seizure of movable properties is subject
to s 3 of the Debtors Act 1957.
 The execution is by the Registrar through the
court bailiffs –
 Bailiff will go to the residence of JD and seize
JD’s movable assets.
 Execution must be between 9.00am and
4.00pm.
 The duties and powers of the sheriff are
provided for under O46 rr14-26 ROC
 Seizure of movable properties
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 S 3 of the Debtors Act 1957 prohibits the

attachment of certain items –
 the wearing apparel, cooking vessels, beds or
bedding of the judgment debtor, his wife and
children, and the tools and implements of his
trade to the value of RM200
 the tools of artisans or, where the judgment
debtor is an agriculturalist, his implements of
husbandry and such cattle and seed-grain or
produce as may in the opinion of the court be
necessary to enable him to earn his livelihood
as such;
 Seizure of movable properties
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 S 3 of the Debtors Act 1957 prohibits the

attachment of certain items –
 houses and other buildings (with the materials and
the sites thereof and the land immediately
appurtenant thereto and necessary for their
enjoyment) belonging to an agriculturalist and
occupied by him;
 books of account;
 any pension, gratuity or allowance granted by the
Government of Malaysia or the Government of any
State or by such other public body as the Yang di-
Pertuan Agong may by notification in the Gazette
designate;
 Seizure of movable properties
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 S 3 of the Debtors Act 1957 prohibits

the attachment of certain items –
 wages or salary of the judgment debtor:
 Provided that where such wages or salary exceed
two hundred ringgit a month the court may
authorize execution to be levied in such manner as
may be prescribed by rules of court in respect of
such excess or part thereof as the court may think
just;
 Raymond Michael Ignatius & Satu yang lain lwn D
& C Finance Bhd [1994] 2 MLJ 679
 Seizure of movable properties
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 S 3 of the Debtors Act 1957 prohibits the

attachment of certain items –
 where the judgment debtor is a person liable for
the payment of lane revenue, any movable
property which under any law applicable to him
is exempt from sale for the recovery of an
arrear of such revenue; and
 any share of a judgment debtor in a partnership
as to which the judgment debtor is entitled to
proceed to obtain a charge under any written
law relating to partnerships.
 Proceeds of sale
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 The order of priority in disposal of

proceeds of sale is –
 court fees and commissions;
 expenses of the execution;
 refund to the JC the deposit or balance made
by him for the execution;
 amount due to the JC;
 other execution creditors in order of priority
of their writs to the dates of issue;
 balance, if any, to the JD – O46 r17(3) ROC
 Garnishee proceedings
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 This is the mode available to the judgment

creditor (JC) to recover money owed to the
judgment debtor (JD) in the hands of a third
party (garnishee)
 It is provided for under O49 ROC.
 Where there are money owed to the JD,
application may be made to the court to attach
such moneys and order the holder of such
moneys (the garnishee) not to pay the moneys
to the JD but to pay the same into court for
satisfaction of the JC’s claim against the JD.
 Garnishee proceedings
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 Essential prerequisites
 The sum of money in the hands of the
garnishee must be certain – it must be
calculated with precision.
 Hongkong Shanghai Banking Corporation v
Goh Su Liat [1986] 2 MLJ 86
 The garnishee must be within
jurisdiction – O49 r1(1) ROC
 Garnishee proceedings
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 Procedure
 2-stage procedure – O49 r1(2) ROC
 show cause stage
 further consideration stage
 Garnishee proceedings
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 Show cause
 Garnishee proceedings are commenced by
obtaining an order in Form 97 to show cause
 this is an order to the garnishee to appear before
the court to show cause why he should not pay to
the JC the debt due from him to the JD
 the order specifies the time and place for further
consideration of the matter, and in the meantime
attaches the debt
 Garnishee proceedings
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 Show cause
 Application for the order is made by ex parte
Notice of Application supported by affidavit in
Form 98 stating –
 the judgment or order to be enforced and the
amount remaining unpaid;
 to the best of the deponent’s belief that the
garnishee is within the jurisdiction and is indebted
to the judgment debtor and stating the source of
the deponent’s information or the grounds for his
belief – O49 r2 ROC
 Garnishee proceedings
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 Show cause
 The order to show cause must be –
 served on the garnishee personally at least 7
days before the time appointed thereby for
further consideration of the matter.
 served on the JD unless the court otherwise
orders – O49 r3(1) ROC
 The order will bind the garnishee from the
time of service – O49 r3(2) ROC
 Garnishee proceedings
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 Further consideration
 Garnishee does not attend or does not dispute
debt due – O49 r4 ROC
 An order absolute in Form 99 will be made if the garnishee
does not attend for further consideration or does not
dispute the debt due or claimed to be due from him by the
JD.
 An order absolute made against the garnishee may be
enforced in the same manner as any other order for the
payment of money.
 Any payment by the garnishee in compliance with the
order shall be a valid discharge of the liability to the JD
notwithstanding that the garnishee proceedings are
subsequently set aside or the judgment or order are
reversed.
 Garnishee proceedings
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 Further consideration
 Garnishee disputes liability – O49 r5 ROC
 In the event the garnishee disputes liability, the
court may summarily determine the issues in
any manner the court deems fit.
 Syarikat Seng Lian Trading v Roxy Malaysia [1978]
1 MLJ 221
 The court may alternatively order the trial of the
matter before the Registrar
 The order shall be in Form 100
 Garnishee proceedings
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 Further consideration
 Third party has lien or charge – O49 r6 ROC
 If the garnishee states that a third party has a
lien or charge upon the matter, the court may
compel the third party to appear in court to
state the nature and particulars of his claim
upon the debt.
 Abdul Samad bin Hj Alias v Public Bank [1985] 1
MLJ 150
 Garnishee proceedings
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 Further consideration
 Garnishee cannot set-off debt owing to him by
the garnishor (JC).
 Sampson v Seaton Railway Co (1875) LR 10 QB 28
 However, the garnishee may set-off debt owing
to him by the JD.
 Saw Swan Kee v Sim Lim Finance [1985] 1 MLJ 221
 S 35 Government Proceedings Act 1956
 Money payable by the government to another can
only be attached with the consent of the Finance
Minister in the case of the Federal Government or
the Chief Minister in the case of the State
Government.
 Garnishee proceedings
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 Further consideration
 Statute forbidding attachment of debts
 s 19 of the Pensions Act 1980, except for the
purpose of satisfying –
 debt due to the government
 debt owed under an court of the court for the
maintenance of the pensioner’s wife or former wife or
minor child
 S 15 of the Employees Provident Fund Act 1951
 a person’s EPF payments may not be garnished
 S 3(1) of the Debtors Act 1957
 Wages of a Federal Officer or Railway Officer may only
be garnished with the consent of the Minsiter of
Finance and the wages of a state officer may only be
garnished with the consent of the Chief Minister.
 Garnishee proceedings
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 Further consideration
 Statute forbidding attachment of debts
 S 11 of the Workmen’s Compensation Act 1972
 No lump sum or half-monthly payment payable under the Act
shall in any way be capable of being assigned or charged or
liable to attachment or pass to any person other than the
workmen by operation of law nor shall any calim be set off
against the same.
 S 35 of the Bank Simpanan Nasional Act 1974
 No deposit in the Bank and no interest on any deposit shall
be attached, sequestered or levied upon for or in respect of
any debt or claim whatsoever, but upon notice of a claim
under a judgment of any court, the Bank may in its discretion
retain in the account of a sum sufficient to answer the claim
and to pay the amount into court on its order, but the court
can only make the order if it is satisfied that the JD has a
account with the bank for his own sole benefit.
 Charging Order
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 This is provided for under O50 ROC and

applies only to securities, that is –
 any government stock, and any stock of any
company registered under any written law,
including any such stock standing in the
name of the Accountant General; and
 any dividend of
 2-stage procedure –
 show cause stage
 further consideration stage
 Appointment of receiver
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 This is an equitable execution and is

provided for under O51 ROC
 The procedure for appointment of receiver
is governed by O30 – O51 r3(1) ROC
 by way of summons or motion;
 ex parte or inter partes
 The summons for the appointment of
receiver is in Form 105 and an order for
the appointment of receiver is in one of
Form 106.
 Appointment of receiver
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 The court in exercising its discretion is

guided by the following –
 since it is an expansive method, the usage of
this method must be in circumstances when
there are no other methods of enforcement
available;
 whether the judgment sum justifies the use of
the method;
 O30 r2 ROC requires the receiver to provide
security – by guarantee or if the amount of
security does not exceed RM10,000, by an
undertaking in Form 54.This is an equitable
execution and is provided for under O51 ROC