INTRODUCTION

 Where there is a failure or refusal to comply with any judgment or order of the court, it
becomes necessary to enforce the judgment or order by the use of one or more of the
court processes. The term enforcement refers to the manner in which a litigant can
compel the obedience/performance of a judgment or order against/by the other party.
 The terms ‘enforcement’ and ‘execution’ are often used interchangeably. However, the
term ‘execution’ is normally used in a restrictive sense to denote enforcement by way of
writs of execution which include; writ of seizure and sale, writ of possession and writ of
delivery.

TIME LIMIT
 S. 6(3) Limitation Act: the limitation period for enforcement of judgment is 12 years;
interest in the judgment debt is 6 years.
 Note: if a party seeks to enforce judgment > 6 years, leave of court must be obtained.
 Daud v Ibrahim
o Fact: the judgment was given in 1939; the party sought to enforce it in 1959.
o Held: enforcement of judgment must be done within 12 years.
 Seema Development
o Fact: the judgment was given in 1996; the party sought to enforce it in 2012.
o Held: the court will not grant leave as the reason for the delay is not satisfactory.

WHEN LEAVE OF COURT IS NECESSARY

 O. 46, r. 2(1): provides that a writ of execution to enforce a judgment or order may not
issue without leave of the court in the following circumstances:
a) where six years or more have lapsed since the date of the judgment or order;
b) where any change has taken place, whether by death or otherwise, in the parties
entitled or liable to execution under the judgment or order;
c) where the judgment or order is against the assets of a deceased person coming to
the hand of his executors or administrators after the date of the judgment or order,
and it is sought to issue execution against such assets;
d) where under the judgment or order any person is entitled to relief subject to the
fulfilment of any condition which it is alleged has been fulfilled; and
e) where any movable property sought to be seized under a writ of execution is in the
hands of a receiver appointed by the Court.
 Tio Chee Hing v Chung Khiaw Bank, FC
o In this case the respondents had obtained leave to issue execution against the
appellant on two judgments entered more than six years ago. The reasons given
for the delay were that there were negotiations for settlement by arrangement. The
appellant appealed.
o FC held: The trial judge had not overlooked the very lengthy affidavit submitted
by the appellant and the numerous exhibits annexed and the appellant did not
contest the validity of the Bank's claims against him. So, that learned trial judge
 had exercised his discretion properly in this case and there was no reason for the
appellate court to interfere with his discretion.

 O. 46, r. 3(1): an application for leave to issue a writ of execution may be made ex parte
by NOA in Form 88 + affidavit. The content of the affidavit, can refer O. 46, r. 3(2)(a)-
(e)
 O. 46, r. 3(3): the court may grant the leave or may order any issue which determine the
rights of parties to be tried/ may impose terms as to the cost.

 O. 46, r. 4(1): the issue of writ of execution takes place when it is sealed by Registry.
 O. 46, r. 4(2): before the writ is issued, a praecipe (order requesting a writ) in Form 89
shall be filed.
 O. 46, r. 4(3): the praecipe shall be signed by solicitor of the judgment creditor (JC) or
execution creditor (EC) or by the latter himself.

EXECUTION AGAINST GOVERNMENT

 S. 33(1) Government Proceedings Act (GPA): the court officer may issue certificate to
enforce judgment against government only after 21 days from the date of order. (normal
case requires 7 days only).
 However, S. 33(4): there can be no execution against government for enforcing payment
by the Government

EXECUTION OF MONEY JUDGMENT

 O. 45, r. 1(1): money judgment may be enforced by writ of seizure and sale (WSS) or
garnishee proceeding or order of committal.
 O. 45, r. 1(1A): other ways: charging order or appointment of receiver.

Writ of Seizure and Sale (WSS) – Order 47

 WSS is applicable to both movable and immovable property.
 O. 45, r. 12(1): a WSS shall be in Form 84 (for movable property for HC); Form 84A (for
movable property for Subordinate Court)/ Form 85 (for immovable property)
 A WSS commands the sheriff to seize & sell the property of the judgment
debtor(JD)/execution debtor (ED) in order to satisfy the judgment sum. After the seizure
has been made, any alienation of the property by the JD shall be void against the sheriff.
 Procedure for WSS:
o Immovable property
 O. 47, r. 6
a) a seizure shall be made by an order by the Court prohibiting the
judgment debtor from transferring, charging or leasing such
property or interest;
b) an application for an order under this rule may be made ex parte by
a notice of application;
c) with affidavit;
 d) a copy of the order shall be served on the judgment debtor and
judgment creditor;
e) a prohibitory order issued under this rule shall not affect any
immovable property or registered interest therein. Any prohibitory
order shall upon the expiration of six months from the date thereof
cease to affect the immovable property. (further refer ROC).
 O. 47, r. 7: sale of immovable property. Among the conditions are; no sale
until the expiration of fourteen days from the date of registration of the
prohibitory order, the particulars and conditions of sale shall be settled by
the Sheriff, the judgment debtor may apply by a notice of application to
the Court for a postponement of the sale to raise the amount leviable under
the writ (further refer ROC).
o Movable property
 The seizure of movable property is subject to s. 3 Debtors Act (DA) which
prohibits the attachment of certain items:
a) wearing apparel, cooking vessels, beds of JD, his wife and
children& the tools of his trade to the value of RM200
b) the tools of artisans / agriculturalist
c) houses and other buildings of agriculturalist and occupied by him
d) books of account
e) pension, gratuity/ allowance granted by the government
f) wages or salary of the JD – provided where such wages/salary
exceed RM200/month, the court may authorize execution to be
levied (imposed)
o Raymond Michael v D & C – there shall be no attachment
of salary as the rules do not provide for the procedure on
this.
g) where the JD is a person liable to pay land revenue, any movable
property which applicable to him under law is exempt from sale for
the recovery of such revenue
h) any share of a JD in a partnership
 The execution is by the Registrar through the court bailiffs: Bailiff will go to the
residence of JD and seize JD’s movable assets, execution must be between 9.00am and
4.00pm and the duties and powers of the sheriff are provided for under O46 R14-26
ROC.
 Priority in Disposal of Proceed of Sale, O. 46, r. 17(3): (a)-(f) the order of priority:
a) court fees and commissions;
b) expenses of the execution;
c) refund to the JC the deposit or balance made by him for the execution;
d) amount due to the JC;
e) other execution creditors in order of priority of their writs to the dates of issue;
f) balance, if any, to the JD (can refer ROC, same)
Garnishee Proceedings – Order 49
 Means: This is the mode available to JC to recover money owed to JD which is in the
hands of a 3rdparty (garnishee)
 Illustration: JD supposed to pay money to JC but he had no money. JD has 3rd party
owing him money. The JC may apply to court & the court may order the 3rd party to pay
the money to the court and the court will pay to JC. (JC = garnishor; 3rd party =
garnishee)
 Prerequisite:
o The money must be in the hands of garnishee
o The amount owed must be certain and calculated with precision
o The garnishee must be within jurisdiction – O. 49, r. 1(1)

Procedure
 Two-stage Procedure for Garnishee Proceedings:
 Show cause stage
o O. 49, r. 1(2): garnishee proceeding is commenced by order in Form 97 – order to
show cause as to why garnishee should not pay to JC the debt due to JD + specify
the time and place for further consideration of the matter + attach the debt.
o O. 49, r. 2: an application under rule 1 shall be made ex parte by NOA + affidavit
in Form 98 – stating (a)(b) (refer Act)
o O. 49, r. 3: an order under rule 1 shall be served on garnishee personally & JD (if
court directs so) at least 7 days before time appointed for consideration of the
matter.
o Hongkong Shanghai Banking Corporation v Goh Su Liat
 Order 49 rule 3(1) provides that the order to show cause must, at least
seven days before the time appointed thereby for the further consideration
of the matter, be served not only on the garnishee but also on the jugment
debtor but in this case the Garnishee Order To Show Cause was not served
on the judgment debtor.
 Thus, it was held that judgment debtor has a right to apply to the Court to
set aside the Garnishee Order To Show Cause and the Garnishee Order
Absolute.
 Further Consideration Stage
o Garnishee does not attend or does not dispute the debt due – O. 49, r. 4: order
becomes order absolute in Form 99
o Garnishee dispute liability – O. 49, r. 5: the court may summarily determine the
question/ order the trial of the matter before Registrar in Form 100
 Syarikat Seng Lian Trading v Roxy Malaysia
 Held: as 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 should have referred the
matter to the judge for trial.
 o 3rd party has a lien/charge – O. 49, r. 6: the court may compel the 3rd party to
appear in court o state the nature and particulars of his claim as also seen in
 Abdul Samad v Public Bank
 Where Judicial Commissioner was not wrong to have made a
garnishee order to the Director of State Customs Sales Tax Branch
as they were functus officioas receivers and managers.
o Garnishee cannot set-off debt owning to him by garnishor (JC)
 Sampson v Seaton
 The garnishee is bound to pay the amount due by him to the JD
irrespectively of any debts which may be owing to the garnishee by
JC.
o Garnishee may set-off debt owing to by JD
 Saw Swan Kee v Sim Lm
 A garnishee cannot set-off against the debt debt owning to him
from the JC but he can set-off against the JD.
o S. 35 GPA: money payable by the government to another can only be attached
with the consent of the Finance Minister (in the case of Federal Government)/ the
Chief Minister (in the case of State Government).
o Statute forbidding attachment of debts:
 S. 19 Pensions Act: debt due to government&debt owed under the court
for the maintenance of pensioner’s wife/ former wife/ minor child
 S. 15 Employees Provident Fund Act: a person’s EPF payments
 S 3(1) Debtors Act: wages of a Federal Officer/ Railway Officer may only
be garnished with the consent of the Finance Minister & the wages of a
state officer may only be garnished with the consent of Chief Minister
 S. 11 Workmen’s Compensation Act: no payment payable under the Act
shall be liable to attachment
 S. 35 Bank SimpananNasional Act: no deposit/interest on the deposit in
the Bank shall be attached. However, the Bank may retain a sum in the
account sufficient to answer the claim & to pay the amount into court on
its order. The court can only make the order if it is satisfied that the JD has
an account with the bank for his own sole benefit.
 Top-A Plastics Sdn Bhd
o Fact: P was a customer of D bank. D received 2 garnishee orders to show cause.
Then, D frozen all the P’s accounts without informing P. After the P’s account had
been frozen, there was a sum paid into the already frozen account of P and P was
not allowed to utilize it. P claimed that the account was wrongly frozen by D.
o Issue: what is the D’s obligation (as a garnishee) under the said garnishee orders?
o Held:
 As a prudent banker, D should have notified P immediately upon service
of the garnishee orders, not to wait until later. The court is satisfied that D
has failed in its duty to act promptly as a banker.
 D has wrongly frozen the amount which was paid in P’s account. The said
amount is not subject to the garnishee orders and should be paid into a new
temporary account so that P may utilize the amount. Damages are granted
to P.
JUDGMENT DEBTORS SUMMONS (JDS) (ORDER 48)
 Means: JD is summoned to attend to court to examine his ability to pay debt and
whereabouts of his properties.
 O. 48, r. 2 – r. 3 (refer Act)
 Procedure:
o O. 48, r. 1(2): ex parte application by NOA + affidavit in Form 95
o O. 48, r. 3: the order for examination of JD - Form 96 & must be served
personally.
o S. 4(1) DA: the JC may summon JD/if the JD is a company, an officer of that
company, to be orally examined before the court in respect to the JD’s ability to
pay the judgment debt & and for discovery and disposal of property applicable to
such payment.
o S. 4(2): the JD who has been summoned shall produce all books, papers/
documents in his possession when he is called to. (if the JD is a company)
o S. 4(3): the JC may subpoena any person as a witness whom he considers likely to
be able to supply information to the claim.
o S. 4(5): if the JD having been duly served does not appear, the court may:
 order him to be arrested and brought before the court to be examined/
 make an order against the JD ex-parte
o S. 4(7): If the JD makes default in payment, a notice in the form prescribed by
ROC may be issued, on the request of the JC, calling the JD to attend before the
court & show cause why he should not be committed to prison for such default.
o S. 4(9): a debtor shall be committed to prison if he has had sufficient means to
comply with the order but he did not comply with.

CHANGING ORDER (ORDER 50)

 O. 50, r. 2 – r. 6 (refer Act) applies only to securities, that is – any government stock,
and any stock of any company registered under any written law, including any such stock
standing in the name of the Accountant General; and any dividend of.
 Procedure:
o 2 stages: show cause stage & further consideration stage

APPOINTMENT OF RECEIVER (ORDER 51)

 O 51, r. 1– r. 3 (refer Act) This is an equitable execution.
 O 51 r. 3(1): by way of summons or motion; ex parte or inter partes; The summons for
the appointment of receiver is in Form 105 and an order for the appointment of receiver is
in one of Form 106.
 The court in exercising its discretion is guided by:
o This method is used only where no other methods of enforcement available
o Whether the judgment sum justifies the use of the method
o O. 30, r. 2 requires receiver to provide security – by guarantee / by undertaking (if
amount of security does not exceed RM10,000)