Order 4 Judgments (Enforcement) Rules

Order 4 of the Judgments (Enforcement) Rules is about Issue of process. It contains the following rules:

1. Period to elapse after judgment
   (1) No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the court for giving possession, until after the expiration of fourteen days from the day on which judgment is given.
   (2) No other process shall, except by express leave of the court, be issued until after the expiration of three days from the day on which judgment is given.
2. Execution on behalf of persons not parties to the suit
   Execution may issue on behal f of any person not a party to the suit, by leave of the court, upon proof of his title to the benefit of the judgment, and upon substitution of the name of the new judgment creditor, together with a statement of his derivative title, for that of the former judgment creditor.
3. Application for process: to whom made
   An application for the issue of any process which may issue without application to the court or a judge or magistrate shall be made to the registrar in the first instance, and an application for the issue of any other process shall be made to the registrar after the order for its issue shall have been obtained.

4. Manner of application to registrar for issue of process
   An application to the registrar for the issue of any process in respect of which no praecipe is required or prescribed shall be made by filing a written request for the issue of the process specifying the number and title of the suit, the date of the judgment, the
   nature of the process, and the name of the party against whom, and the amount, if any, for which it is to be executed.
5. Registrar to issue proper writ of execution
   Upon the application of the judgment creditor, the registrar shall, subject to the provisions of these Rules, issue the proper process for the execution of the judgment.
6. Registrar may apply to court for direction
   The registrar may, at any time, take the direction of the court as to any application for the issue of process and in the meanwhile refuse to issue the process.
7. Registrar to record time of application
   The precise time of the making of an application to the registrar for the issue of any writ of execution shall be entered by him in a book in Form 37 and on the writ, and when more than one writ is issued they shall be executed in the order of the times so entered.
   [Form 37.]
8. Execution after two and six years
   (1) As between the original parties, process, otherwise than against the person, may issue at any time within six years, and against the person at any time within two years, from the date of the judgment which is immediately sought to be enforced.
   (2) After such periods respectively process shall not issue without leave of the court, but no notice to the judgment debtor before applying for such leave shall be necessary.
   (3) Where leave is given, a note thereof shall be made on the process.

9. Execution by leave in special cases
   (1) In the following cases, namely-
   (a) where any change has taken place by death or otherwise in the parties entitled or liable to execution;
   (b) where a husband is entitled or liable to execution upon a judgment for or against his wife;
   (c) where a party is entitled to execution upon a judgment of assets in futuro;
   (d) where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against such company or against a public officer or person representing such company,
   the party alleging himself to be entitled to execution may apply to the court for leave to issue process accordingly. The court may, if satisfied that the party so applying is entitled to execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in any action may be tried. And in either case the court may impose such term as to costs and otherwise as shall be just.
   
   (2) Where leave is given, a note thereof shall be made on the process.

10. Process in force for one year
    Any process, if unexecuted, shall remain in force for one year only from its issue.
11. Concurrent executions
    Process may be issued concurrently for execution in one or more divisions or districts, but the costs of more than one process and execution shall not be allowed against the judgment debtor except by order of the court.
12. Pending judgment summons
    Where a judgment summons is pending or an order or warrant of commitment is outstanding in respect of money payable under a judgment, no writ of execution shall issue in respect of the money so payable except by leave of the court.
13. Magistrate not to issue sequestration or interim attachment of immovables
    A writ of sequestration, and a writ of interim attachment directed against any immovable property of a defendant or judgment debtor, shall not issue out of a magistrate’s
    court, but such writs may issue out of the High Court upon the transfer thereto of the proceedings.
    [L.N. 47 of 1955.]
14. Interim attachment
    No praecipe shall be required upon the issue of a writ of interim attachment.
15. Application for execution against movable property
    When a judgment creditor desires a writ of attachment and sale against the movable property of the judgment debtor to be issued, he shall file a praecipe in Form 3.

16. (1) When a judgment creditor desires a writ of attachment and sale to be
    issued against the immovable property of the judgment debtor he shall apply
    to the High Court.

(2) The application shall be supported by evidence showing-
(a) what steps, if any, have already been taken to enforce the judgment,
and with what effect; and
(b) what sum now remains due under the judgment; and
(c) that no movable property of the judgment debtor, or none sufficient to
satisfy the judgment debt, can with reasonable diligence be found.

(3) If upon the hearing of the application it appears to the court that the writ
of attachment and sale may lawfully issue against the immovable property,
the court shall make an order accordingly.

(4) A writ of the attachment and sale against immovable property shall be in
Form 38.

17. When the name or address of any person, as given in any praecipe or other application for the issue of any process, differs from the name or address in the plaint note, summons, or judgment, and the applicant satisfies the registrar or the court or the Judge or magistrate, according as the application is made to the registrar or the court or the Judge or magistrate, that the amended name or address is applicable to the person against whom the judgment was obtained, both names and addresses shall be inserted on the process as follows: –

C. D. of …………………… (name and address as given in the praecipe or
application) ………………………. sued (or suing) as A.D. of …………. (name
and address in the plaint note, summons or judgment) …………….…..

18. (1) After the issue of a writ of execution but before sale thereunder the
    judgment debtor, or anyone on his behalf, may pay to the bailiff holding the writ, or to the court which issued the writ, or to the foreign court, if any, the amount to be levied under the writ and the costs, if any, subsequent to the issue of the writ, or part of such amount and costs.

(2) Where any such payment or part payment is made, the following
provisions shall apply-

(a) where the money is paid to the court of the division or district in
which the writ is to be executed, the registrar shall notify the bailiff
holding the writ of the payment;
(b) where the money is paid to the home court after the writ has been sent
to a foreign court, the registrar of the home court shall send a notice of
the payment in Form 39 to the registrar of the foreign court, who shall
notify the bailiff holding the writ of the payment;

(c) where the money is paid or paid over to the foreign court, the registrar
of that court shall follow the procedure prescribed in paragraphs (3) and
(4) of rule 28 of Order II;
(d) where payment is made or notified to the bailiff holding the writ, he
shall deduct the amount of the payment from the total amount to be
levied, and execute the writ for the balance only, if any.

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