Order 5 Judgments (Enforcement) Rules

Order 5 of the Judgments (Enforcement) Rules is about Attachment. It contains the following rules:

1. The sheriff or any bailiff executing any writ for the attachment and sale of any property of a judgment debtor-

(a) where the writ is for the distress or attachment and sale of goods, may
by virtue thereof attach and sell-

(i) any movable property to which the judgment debtor is entitled,
but which is not in his possession or is subject to a lien or right of
some other person to the immediate possession thereof, and
(ii) any shares in any public company or corporation to which the
judgment debtor is entitled; and

(b) where the writ is for the attachment and sale of immovable property
may by virtue thereof attach and sell any of the immovable property of
the judgment debtor.

2. The attachment of any movable property mentioned in paragraph (a) of the
   preceding rule shall be effected under an order of court prohibiting-

(a) the person in possession of, or entitled to a lien or right of immediate
possession over, the property from giving over the property to the
judgment debtor, or

(b) the person in whose name the shares may be standing from making
any transfer, or receiving payment of any dividends thereof, and the
manager, secretary, or other proper officer of the corporation from
permitting any such payment, until further order of the court, by delivering an office copy of the order to any person bound by it.

3. The attachment of immovable property shall be effected by the delivery of the notice of attachment in Form 41 mentioned in the next succeeding rule, and, unless the court shall otherwise order, by posting in a conspicuous place on the land a notice in Form 40 prohibiting all persons from receiving the same by purchase, gift, or otherwise; and the sheriff may also take and retain actual possession of the land, by putting into possession thereof some fit person approved by the sheriff.

4. The person proceeding to attach any property shall deliver to the judgment
   debtor or leave at the place where the attachment is effected a notice of
   attachment in Form 41.
5. Property in the custody or under the control of any public officer in his official
   capacity shall be liable to attachment in execution of a judgment with the
   consent of the Attorney-General, and property in custodia legis shall be liable
   also to attachment by leave of the court. In such cases the order or notice of
   attachment must be delivered to such public officer, or to the registrar, as the
   case may be.
6. (1) When property is attached the sheriff shall notify the judgment debtor of
   the time when and the place where the property will be sold, at least twentyfour hours before the time of the sale.

(2) When movable property attached is removed, the sheriff shall give to the
judgment debtor a sufficient inventory thereof, immediately after the
removal.

(3) The notification and inventory shall be given to the judgment debtor
personally, or sent to him by post to his place of residence, or if his place of
residence is not known may be left at or sent by post addressed to him at the
place where the property was attached.

7. After an attachment shall have been made by actual seizure, or by order or
   notice as aforesaid, and, in the case of an attachment by order or notice, after it shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the court of the property attached, whether by sale, gift or otherwise, and any payment of the dividends or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of court.
8. (1) Where upon the attachment of any property under a writ of execution the
   judgment debtor disputes the amount alleged to be remaining due under the
   judgment, he may, without prejudice any other remedy he may have, apply
   to the court for a stay of execution and an inquiry as to what amount, if any,
   remains due under the judgment.

(2) The court upon such application may make an order for staying the
execution upon such terms, including terms as to security to be given by the
judgment debtor, as it thinks fit; and may order an inquiry, on notice to the
judgment creditor, as to what amount, if any, remains due under the
judgment, and shall conduct the inquiry in like manner and with the same
powers as if it were an inquiry under rule 10 of Order IX upon the hearing
of a judgment summons.

9. When the property attached shall consist of immovable property, it shall be
   competent to the court to appoint a manager or managers of the said property, and to execute such deeds or instruments in writing as may be necessary for the purpose, and to pay and apply such rents, profits, or receipts towards the payment of the amount to be levied and subsequent costs; or, when the property attached shall consist of land, if the judgment debtor can satisfy the court that there is reasonable grounds to believe that the amount of the judgment may be raised by the mortgage of his interest therein, or by letting on lease, or by disposing by private sale of a portion of such interest, or of any other property belonging to the judgment debtor, it shall be competent to the court, on the application of the judgment debtor, to postpone the sale for such period as it may think proper, to enable the judgment debtor to raise the amount. In any case in which a manager shall be appointed under this order, such manager shall be bound to render due and proper accounts of his receipts and disbursements, from
   time to time, as the court may direct.
10. (1) If the judgment debtor shall be absent from the jurisdiction, and it shall
    appear to the satisfaction of the court that the public sale of any of his

immovable property which has been attached is objectionable, and that
satisfaction of the judgment may be made within a reasonable period by a
temporary alienation of such property, the court may of its own motion,
instead of proceeding to a public sale of such property, order that provision
be made for the satisfaction of the judgment by mortgage thereof, and may
authorise the registrar, if necessary, to execute the mortgage deed in lieu of
the judgment debtor or any other necessary parties and may make such
orders in relation to such mortgage as may be requisite to carry out this
provision; and the execution of such mortgage deed by the registrar in the
form prescribed in rule 13 of Order VII shall have the same effect as the
execution thereof by the judgment debtor or other necessary parties.

(2) That the court may be able to act under this rule the sheriff shall forthwith
on the attachment of any immovable property of a judgment debtor absent
from the jurisdiction give notice of the same to the court.

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