How to enforce judgments under the civil proceeding in Malaysia

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I did this tutorial question last year. Hopefully it might be useful for the juniors in their coming exams! Good luck!

Methods of enforcements of judgments are important in instances where there is a failure or refusal to comply with any judgments or Order of the court, and it then becomes necessary to enforce judgments or Orders by the use of one or more of the court processes. Ensuring that a party to a civil action complies with the decision of the court is not easy due to the fact that the matters are between two private individuals and there are not such persuasive sanctions available as in the criminal arena. Section 6(3) of the Limitation Act 1953 stated the limitation period for the enforcement is 12 years as illustrated in Daud v Ibrahim. The writ of seizure and sale is provided for under Order 47 of the Rule of High Court (RHC) 1980. The writ in Form 88 commands the sheriff to seize and sell the property of the judgment debtor to such an extent as is necessary to satisfy the judgment sum. After the seizure has been made by the sheriff and during the continuation of the seizure, any alienation of the property by the judgment debtor by way of sale, gift, mortgage or otherwise shall be void against the sheriff and any person on whose behalf the property is seized. The procedure for writ of seizure and sale in relation to movables is governed by section 3 of the Debtors Act 1957, namely the writ issued is in Form 88 and it must be supported by affidavit. In Datuk Wong Yit Ming v Sabah Inn S/B, the writ of seizure and sale was issued against the goods of respondent found in petitioner premise rented to the respondent. The second method is garnishee proceedings that are stated in order 49rule 1(1) of the RHC 1980. It clearly stated that where there are any money owed to the judgment debtor, an application may be made to the court to attach such moneys and order the holder of such moneys or the judgment debtors debtor, the garnishee, not to pay the moneys to the judgment debtor but to pay the same into court for the satisfaction of the judgment creditors claim against the judgment debtor. The essential prerequisites of garnishee proceedings are that the sum money in the hands of the holder of such moneys or the judgments debtor debtor must be certain. In Hongkong & Shanghai Banking Corp v Goh Su Liat is mainly about the judgment debtor was employed as a senior Telecoms Operator with the Telecommunication authority in Singapore that is the garnishee. In June 1985, the judgment creditor commenced an action against the judgment debtor the money and interest form the judgment debtors Visa Card and Master Card. Owing to the judgment in default of appearance, the judgment creditor applied garnishee order to show cause and the garnishee against judgment debtor on 27 September 1985 but the judgment debtors salary was not due until 31 October 1985. Thus, there was no attachable debt. The garnishee action could not be applied due to the future events that are

unpredictable. In Syarikat Seng Lian Trading v Roxy (Malaysia), the R-a judgment creditor had served a notice of garnishment on the A. The A denied owing any money to the judgment debtor. The senior assistant registrar ordered that the issue of indebtedness be tried before her and eventually she forward that the A, the garnishee was indebted to the judgment debtor and order A to pay this amount to the judgment creditor. The A appealed to the FC. It was held that the garnishee disputed his liability in this case and as on the facts, he had not consented to have the matter dealt with in a summary manner. The learned senior assistant registrar had no jurisdiction to try the issue in dispute and would have referred the matter to the trail judge. Yjudgment creditorXjudgment debtorX YXYgarnisheeX YYXYGarnishee Equitable execution is stipulated in Order 51 of the RHC 1980 provides that where application is made for the appointment of a receiver by way of equitable execution, the court in determining whether it is just or convenient that the appointment should be made shall have regard to the amount claimed by the judgment creditor, to the amount likely to be obtained by the receiver and the probable costs of his appointment and may direct an inquiry on any of these matters or any other matter before making the appointment. The summons for the appointment of a receiver must be in Form 108 and an order for the appointment of receiver by way of equitable execution must be in one of the Form 109. In Minister of Finance v Petrojasa S/B, The Respondent had obtained a monetary judgment at the High Court at Sandakan against the State Government of Sabah. The Respondent then applied for and obtained a Certificate of Judgment Sum and Order for Costs pursuant to section 33(1) of the Government Proceedings Act 1956 (GPA). As the State Government of Sabah did not make payment as required by the certificate, the Respondent filed an ex-parte Application for Leave for Judicial Review for an order of mandamus against the Appellant, the Minister of Finance, Government of Sabah, to pay the judgment sum in accordance with said certificate. as against a Government one cannot resort to any of the procedures provided by Orders 45 to 52. The only procedure allowed is as provided by section 33 GPA. Normally applied to wining up a company. But normally the business will carry on to earn some money. So the judgment creditor appointed a administrator as a management in the company to do management and prevent any money go inside judgment debtors pocket Charging order is another types of enforcement of judgment that stated in Order 50 of the RHC 1980.Order 50 rule 2(3) applies to any government stock, and any stock of any company registered under the written law, including any such stock standing in the name of the Accountant General and to any dividend of or any interest payable on such stock. Order 50 rule 3 of the RHC 1980 provides the procedure for the application of a charging order, by way of an ex parte summons supported by an affidavit. Order 50 rule 4(1) of the RHC 1980 provides that unless the court otherwise directs, a copy of the order made under rule 2 to show cause must at least 7 days before the time appointed thereby for further consideration of the matter. Order 20 rule 5(1) of the RHC 1980 provides that the charging order has the effect that no disposition by

the judgment debtors of his interest in any securities to which an order under rule 2 to show cause relates made after the making of that order shall, so long as the order remains in force, be valid as against the judgment creditor. (Similar to mortgage) The writ of possession is applicable where the judgment or order is for giving possession of immovable property. Under Order 45 rule 3(2) of the RHC 1980, a writ of possession shall not be issued without leave of the court except where the judgment or order was given or made in a charge action. Besides that, Order 45 rule 3(4) of the RHC 1980 provides that a writ of possession may include provision for enforcing the payment of any money ordered to be paid by judgment that is to be enforcing by the writ. The writ of possession in Form 90 commands the sheriff to enter into the property and to take possession of the property. The writ may include provision for enforcing the payment of money, usually rental arrears and legal costs and for that purpose the writ will command seizure and sale of moveable property of the defendant to satisfy the party monetary part of the judgment. The writ of delivery in Order 45 rule 4 of the RHC 1980 in Form 89 commands the sheriff to seizure and delivers the movable property or value of the property or the specific property as the case may be to the judgment creditor. An order for the payment of the assessed value of any movable property may be enforced by the same means as to any other judgment for payment of money.