CHAPTER 11 ENFORCEMENT OF JUDGMENT

11.1 Introduction

1. Enforcement of judgments refers to the manner in which the litigant can compel
obedience of the judgment or order against the other party.

a. Taylor Roe (1893) 68 LT 253

 No necessity to serve a “notice of intention to proceed” for execution

of judgment after the lapse of 1 year as issue of execution is not a
“proceeding” within the meaning of O3R6 RHC 1980.

11.2 Time Limit

2. S.6 Limitation Act 1953 Judgment cannot be enforced after the expiration of 12
years.

3. However, no judgment interest can be enforced after the expiration of 6 years from
the date on which the interest became due.

11.3 Enforcement against Government

4. Generally, no execution against the Government will be allowed.

a. S.33 (4) of Government Proceedings Act 1956

11.4 Method of Enforcement

11.4.1 Writ of Execution

5. A writ of execution is valid for 12 months and its validity may be extended by the
court upon application for a period of 12 months from time to time.

6. O46 Writ of Execution includes:

a. Writ of Seizure and Sale
b. Writ of Possession
c. Writ of Delivery
7. Leave necessary in the case of Writs of Execution
a. O46 R2 (1) ROC 2012 when leave to issue any writ of execution is necessary
b. Tio Chee Hing v Chung Khiaw Bank (1981) 1 MLJ 227
8. Ex parte application in Form 88
a. O46 R3 (1) ROC 2012
b. O46 R3 (2) (a)-(e) ROC 2012

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11.4.1.1 Writ of Seizure and Sale

9. Movable property
a. Seizure of movable objects are subject to S.3 Debtors Act 1957.
b. O.46 r.3(2) – Application for leave to be supported by Affidavit setting out the
judgment sought to be enforced.
c. O.46 r.4 – Solicitor will also file a praecipe for the issuance of the writ of
execution in Form 89.
d. Writ of seizure and sale is issued in Form 84 once it is sealed by the officer of
the Court Registry (O.45 r.12).
e. O.46 r.16(1) – the sheriff/bailiff shall seize the movable property and issue
and notice of seizure in Form 91.
f. O. 46 r.23 – the sheriff/bailiff shall sell the seized movable property by way of
public auction.
10. Immovable property
a. If the purpose is to seize and sell an immovable property, then an application
must be made to seize the property, in pursuant to O.47 r.6(a).
b. The party intending to have the immovable property to be seized must file an
application in the HC for an order prohibiting the JD from transferring,
charging, or leasing the property. This is known as a Prohibitory Order.
i. Sessions Court has no jurisdiction to issue prohibitory order (Peh
Wee Lee & Anor v Pendaftar Hakmilik Negeri Sembilan & Ors)
c. Application for prohibitory order must be made by way of ex-parte OS with
affidavit.
d. O.47 r.6(d) – this order shall be served on the JD.
e. O.47 r.6(e) – the PO must also be registered at the land office where the
property is situated. The land is deemed to be seized only when the PO is
registered.
f. O.47 r.6(f) – PO shall be valid for 6 months.
g. Once the property is seized, the following documents must be filed:
i. An application for leave to issue a writ of execution – Form 88 (O.46
r.3(1) ROC);
ii. Affidavit in support of the application;
iii. Praecipe for the writ of execution; and
iv. A copy of the writ of seizure and sale.

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 h. O.46 r.3(2) – application for leave must be supported by Affidavit setting out
the judgment sought to be enforced.
i. Once the court grants order in Form 85 (O.45 r.12), the immovable property
may be sold by way of public auction but it should be sold only after the
expiration of 14 days from the date of registration of the prohibitory order at
the land office (O.47 r.7(a) ROC).

11.4.1.2 Writ of Possession

11. This writ of execution is for where a person having legal interest in the property
intends to take possession of the property.
12. If judgment did not give possession of property to the party, the writ of possession
cannot be issued.
a. Leong Ah Weng v Neoh Thean Soo & Anor
i. Consent order was recorded – respondent had agreed to grant lease
of land to the appellants upon payment of a specific sum and the
appellants were to hand over vacant possession of the land to the
landlord upon expiry. At the expiry of the lease, the appellant failed to
do so.
ii. FC: Since there was no order for possession belonging to the
respondent in the consent order, O.45 r.3 (Writ of Possession) does
not apply.
13. Procedure:
a. O.45 r.3(2) – Plaintiff must apply leave to obtain a writ of possession.
b. O.45 r.3(3) – The application for leave to issue a writ of possession must be
served on every person in actual possession of the immovable property.
c. Once leave is obtained, a writ of possession may be taken out as in Form 87,
O.45 r.12 ROC.
14. Case:
a. Manchester Corporation v Connolly (1970) Ch.420 CA
i. “Like other common law remedies, it did not act in personam against
the defendant. It authorised the executive power as represented by
the sheriff to do certain things, perform certain acts, in this particular
case to evict from land persons who are there and deliver possession
of the land to the plaintiff.”

11.4.1.3 Writ of Delivery

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 15. Used when there is a judgment requiring one party to deliver a specific item to the
other party.
16. Where the plaintiff seeks the delivery of the goods or the assessed value of the
goods, then the plaintiff may apply for writ of delivery (O45 R4(1)(a) ROC)
17. However, if the Plaintiff is only seeking the delivery of the goods and not its assessed
value then the plaintiff must apply for leave to obtain a writ of special delivery (O.45
r.4(2)(b) ROC)
18. An application for the issue of a warrant for delivery is made by filing a request.
19. Case:
a. Hymas v Ogden (1905) 1 KB 246 CA
i. A writ of delivery in the prescribe Form, commands the sheriff to seize
and deliver the property or the specific property as the case may be to
the judgment creditor.

11.4.2 Garnishee Proceeding

20. Recovery by a creditor of money “due or accruing due” to a judgment debtor in the
hands of a third party (garnishee)
21. JC must apply via ex-parte NOA + AIS in Form 98 for an order that the garnishee
attends court on a particular date and time to show cause why the monies that are in
his possession are due to the JD should not be garnished (O.49 r.2(2) ROC)
22. Conditions:
a. There is unpaid amount from judgment sum;
b. The garnishee is indebted to the JD.
i. HSBC v Goh Su Liat (Telecommunication Authority of Singapore,
Garnishee)
- The debt which is attachable must already be due to the JD at
the time the application for garnishment is made.
ii. Similar in Saw Swan Kee v Sim Lim Finance (M) Bhd (1985) 1 MLJ
221
c. Garnishee is within jurisdiction (O.49 r.2(2)(a) & (b) ROC)
23. Procedure
a. O49 R 1 (1) & (2) ROC 2012 + Form 97 – Garnishee to show cause as to why
the money due to JD should not be garnished.
b. O49 R 2 + Form 98 (Affidavit) (Ex parte)
c. O49 R3(1) – Garnishee order must be served personally.

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 d. O49 R3(2) – Once garnishee is served with the order to show cause, the
money due to the JD will be frozen – cannot be paid or given to the JD (O.49
r.3(2) ROC)
24. GO to show cause is aka Garnishee Order nisi.
25. O49 R5 – Garnishee must appear before court to dispute liability.
26. O49 R4 – If Garnishee does not attend or does not dispute the debt due, then the
order will be absolute.
27. Garnishee cannot set off debt owing to him by Judgment Creditor
a. Sampson v Seaton Railway.
28. O49 does not apply to Government BUT JC may make an application under S 35 (1)
Government Proceedings Ordinance 1956 to restrain JD from receiving any money
due to him by the government and to direct payment thereof to the JC. (See O73 R13
ROC 2012)

11.4.3 Charging Orders

29. JC against JD who has securities – e.g. stocks, shares, bonds etc.
a. O50 R2 - Applies only on securities
30. Procedure
a. O50 R3 – JC make ex-parte application by way of NOA for an order that the
stocks, shares, bonds etc shall stay charged on the judgment debt.
b. This application is to be supported by an AIS:
i. Stating the amount unpaid; and
ii. Specifying the securities owned by the JD
c. Upon hearing the ex-parte application, the court will give a charging order nisi
to show cause.
d. O50 R4 – must be served on JD & company which owns the securities.
e. O50 R5 – once served, the securities will be frozen, it cannot be sold,
transferred, or charged.
f. If it is transferred, then the company will be liable to pay the JC (O.50 r.5(3)
ROC)
g. O50 R6 – the court will fix a date for the hearing of the charging order to show
cause to hear why the charging order nisi should not be made absolute.
h. O50 R6(3) – if no sufficient cause to the contrary shown, the CO nisi will
become absolute. Once so, and the securities become charged, the JC may
apply for an order for them to be sold and the judgment debt be realised.

11.4.4 Equitable Execution (Appointment of Receivers)

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 31. For when there is continuous income (O51 R1)
32. The role of the receiver is to collect the income towards the settlement of the
judgment sum.
33. Procedure (O.30 ROC):
a. Application by way of NOA (O.30 r.1(1) ROC)
b. In deciding whether to allow the application, O.51 r.1(1) requires the court to
consider whether it is just and convenient for the appointment to be made.
Factors:
i. Amount claimed by JC;
ii. Amount that may be collected by receiver;
iii. Costs of appointment of receiver; and
iv. Any other relevant facts.
c. O30 R1(3) – Pending the hearing of the application, the JC may also apply for
an injunction restraining the JD from receiving the monies.
d. O30 R2(1) – In appointing a receiver, the court may order the receiver to
provide security to the court.
e. O30 R2(3) – If the amount for which the security is to be given exceeds
RM10,000, the security must be in the form of bank guarantee.

11.4.5 Judgment Debtor Summon

34. Provided in S.4 of Debtors Act 1957 for recovery of monetary judgment.

35. O.74 r.11D(2) – JDS must be served personally on the Defendant.

36. Once JDS is served on JD, the JD must personally come to court to explain why the
judgment debt has not been paid to the JC.

37. If JD is a company, JDS to be served on the director or secretary, and these officers
must bring to court the company’s financial records and explain why judgment sum
has not been paid.

38. Having considered the explanation, the court may order the JD to pay the whole sum
or by a monthly sum to JC.

39. If JD defaulted in making payment, JC may commence committal proceeding against

JD (S.4(7) Debtors Act 1957).

40. Procedure – O.74 r.11A ROC

a. For individuals:

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 i. JC file in court a request to issue a judgment debtor summon in Form
174.

ii. JDS must be served personally on the JD at least 7 days before

hearing date (O.74 r.11D(2) ROC)

iii. JD will appear in court on the date of hearing.

iv. JD will be cross-examined by the solicitor for the JC as to the capacity

of the JD to pay the judgment debt.

v. The court will then order the JD to pay either the whole sum or by
instalment.

vi. If JD defaulted, JC can apply to court to issue a judgment notice on

the Defendant by way of Form 179. The judgment notice is a notice to
the JD to explain why he should not be committed to prison for failing
to settle the judgment debt.

vii. The judgment notice must be served personally on the JD.

viii. JD must appear in court and give his reasons.

ix. Court may decide either to vary the terms of payment or to commit the
JD to prison.

b. For company:

i. JC must apply for leave of court to issue a JDS. This is made ex-parte
in Form 175 supported by Affidavit in Form 176.

ii. Once leave is granted, the JDS in Form 177 may be issued and
served on the JD together with the affidavit.

iii. The court will subsequently fix the matter for hearing and then decide
the manner in which the company will have to settle the judgment
sum.

11.5 Stay of Execution of Judgment

41. S.73 CJA – Appeal does not act as an automatic stay of execution.
42. May apply to the court which delivered the judgment via O.55 r.16.
43. Need to show special circumstances. Example:

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 a. To preserve the subject matter of litigation.
b. The appeal would be rendered nugatory if a stay is not given. The situation
will arise where if judgment sum is paid, then this sum is not recoverable from
the other party, if the appellant is successful in the appeal.
44. Kosma Palm Oil Mill Sdn Bhd & 2 Ors v Koperasi Serbausaha Makmur Bhd
(2003) 5 AMR 758
a. FC: Many factors that constitute special circumstances. Onus on the
appellant tosatisfy the court that there are special circumstances which
justifies the gran of stay.
45. Re Kong Thai Sawmill (Miri) Sdn Bhd
a. The court will not consider the merits in granting leave, but whether there is
special circumstances which requires the stay.

11.6 Statutes forbidding attachment of debts:-

Sec 19 of the Pensions Act

Sec 142 (1) (1) of the Merchant Shipping Ordinance 1952

Sec 11 of the Workmen’s Compensation Act 1952

Sec 35 (1) of the Bank Simpanan Nasional Act 1974

Sec 3 (1)(f)(ii) of the Debtors Act

Sec 15 Employees Provident Fund Act 1951

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