Enforcement

(Definition/Type)

The question mainly regard dispute governed under the law on civil procedure in
Malaysia which is enforcement of judgment.

The issue is whether what are the relevant modes in order to enforce judgment
against ___________.

Enforcement of judgment in general can be defined as imposition of judgment

granted in favour of injured party against a party who has failed or refused to comply
with them. The court is empowered to grant order for to enforce the judgment against
individuals who supposedly comply with it by numerous modes. There are several
matter which need to be considered in order to apply for enforcement of judgment
before the court.

Firstly, time of application. It shall be made known that judgment or order is

subject to limitation period of 12 years from the date of which the judgment is uttered or
become enforceable per Section 6(3) of Limitation Act 1963. Once the time limit had
lapsed, party cannot apply before the court in order to enforce the judgment.
Additionally, if the mode sought after is writ of seizure and sale, possession or delivery,
and the judgment had lapsed a period of 6 years but before 12 years, writ of execution
can only be filed with the leave from court, as provided under Order 46 Rule 2(1)(a) of
ROC 2012.

Secondly, type of enforcement. Under the ROC 2012, there are several types of
enforcement of judgment. In the question, the most relevant way to enforce the
judgment is by way of _____________

Adham Hensem
Judgment Debtor Summons

(Definition/Application/Order/Appearance/Conclusion/Stricter) DAOACS

Judgment debtor summons in general can be defined as a mode of order for the
court to call upon the judgment debtor to appear and to be orally examined with regard
to his ability to pay or satisfy the judgment debt, as provided under Section 4 of
Debtor’s Act 1957. Apart from that, judgment debtor summon is issued in order to
determine the position of the debtor’s property. The rationale is that to offer a chance to
the judgment debtor to fulfil his obligation by portions proportionate and just for both
parties.

Firstly, application. By virtue of Order 48 Rule 1(2) of ROC 2012, it has been
stated that application shall be made ex parte by way of notice of application which is
supported by affidavit. It shall be made within statutory Form 95.

Secondly, order for summon. Once application has been received and approved,
the court will grant order in Form 96 which then personally served to the judgment
debtor per Order 48 Rule 1(3) of ROC 2012. Once it has been served, affidavit of
service must be filed as evidence of service.

Third, appearance of the judgment debtor. Once the order has been served to
the judgment debtor, the judgment debtor is required to attend before the Registrar at a
specific date for examination. Registrar has the duty to orally examine the judgment
debtor with regard to the amount of debt owing by him, together with property or means
to satisfy the debt, per Order 48 Rule 1(2) of ROC 2012. In addition, the Registrar also
have the duty to record every statement given by the judgment debtor, per Order 48
Rule 3 of ROC 2012.

In Republic of Costa Rica v Strousberg, the court was of the opinion that
examination by Registrar under this rule is not lenient to examining but more on cross-
examining, of which the Registrar may inquire any sort of means in order to satisfy the
debt owing by the judgment debtor.

Adham Hensem
 Forth, conclusion of the examination. At the end of the examination, the Registrar
shall record any settlement agreed by the judgment debtor in order to discharge him of
his liability. In the event that no settlement can be achieved, the Registrar may refer the
matter to the court if he deemed suitable to do so, per Order 48 Rule 1(4) of ROC
2012.

(Stricter/Order/Application/Date/Order/Hearing) SO ADOH

However, judgment debtor summons also provided under the Debtor’s Act 1957
and Order 74 of ROC 2012. Under this mode, the examination will be stricter as
compared to the approach under Order 48 of ROC 2012. The difference is that, under
Section 4(1) of DA 1957, apart from examination itself, the court is empowered to order
for discovery of property applicable to such payment of debt and also to inquire any
disposal made by the judgment debtor with regard to his property.
(Examination/Discovery/Disposal) (EDD)

First, application. Application shall be made in chamber by way of filing in Form

174, signed by the applicant or his solicitor per Order 74 Rule 11A of ROC 2012.

Second, date of hearing. Date will be fixed for hearing of the application, at the
same time of which order is granted.

Third, order for summon. Once application has been received and approved, the
court will grant order in Form 177 which then personally served to the judgment debtor
per Order 74 Rule 11D(1) of ROC 2012. Service shall be completed at least seven
days before the day fixed for hearing of the application, per Order 74 Rule 11D(2) of
ROC 2012.

Fourth, hearing. At the date of hearing, the judgment debtor will be examined as
to whether he shall fulfil the debt in lump sum or by installment per the rate fixed by the
court, per Section 4(6) of Debtors Act 1957. In the event of failure to appear before
hearing, the judgment debtor will then be brought to show cause as to why he shall not
be punished with imprisonment, or else be punished with so, per Section 4(7) of DA
1957.

Adham Hensem