Judgment Debtor Summons And Execution Proceedings

 

1. What can the Plaintiff do if there is a Judgment entered against the Defendant but the Defendant has not paid?
   The Plaintiff may file a 'Judgment Debtor Summons' for the Defendant to appear before the Court to explain his or her failure in paying the Plaintiff and whether the Defendant can pay. At this stage, the Plaintiff will be known as a 'Judgment Creditor' and the Defendant will be known as a 'Judgment Debtor'.
   
   Note: Similarly, if the Defendant had won against the Plaintiff, the Defendant can also enforce the court's judgment. The Defendant will then be known as a 'Judgment Creditor' whereas the Plaintiff will be known as a 'Judgment Debtor'.
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2. What are the steps in filing Judgment Debtor Summons?
   The Judgment Creditor may file in Judgment Debtor Summons with the Magistrates' Court and pay the fee of $10. The Judgment Debtor Summons must be personally served to the Judgment Debtor. This is similar to the steps for serving the writ of summons. (link to service writ of summons).
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3. What happens if the Judgment Debtor was served but failed to attend the mention?
   If the Judgment Debtor has been served but does not appear before the Court on the mention date, the Judgment Creditor may apply for a warrant to be issued for the Judgment Debtor's arrest. The fee payable is $20. The warrant of arrest will be issued to the police for them to exercise their powers to arrest the Judgment Debtor and to bring him / her to court.
   
   
4. What happens during a Judgment Debtor Summons mention?
   Once the Judgment Debtor has been served and is present, the Court will examine the Judgment Debtor's ability to pay the amount he owes to the Judgment Creditor (also known as 'examination of means'). Judgment creditor may apply for Judgment Debtor to be examined by (i) the Court, or (ii) by the counsel of the Judgment Creditor.
   
   Examination of means by the Court
   Judgment Debtor shall be examined on oath and is subjected to cross-examination by the Judgment Creditor. Judgment Debtor can also call their witnesses. Judgment Creditor can also give their evidence and call their witnesses.
   
   Court may order for the Judgment Debtor to show any documents relating to his property.
   
   Examination of means by counsel of Judgment Creditor
   Judgment Creditor's counsel may apply to the Court for an order for the Judgment Debtor's mean to be examined at their office. Judgment Debtor are required to bring any documents relating to his property. Judgment Debtor may also negotiate with Judgment Creditor on methods of payment.
   
   
5. What happens after an examination of means?
   The Court may make the following orders:
• If there is an agreement between the Judgment Creditor and Judgment Debtor on the payment method, a 'consent order' will be entered as per the terms agreed by parties.
  

• ​​​If the Judgment Debtor does not agree to a payment method, the Court may:
  
1. Order for the Judgment Debtor to pay either by installment or any other method which the Court finds just taking into consideration the Judgment Debtor's means; or
2. Make any of the following orders stated in question number 6.
   

1. Attachment and sale of the Judgment Debtor's property; (link to attachment and sale)
2. Garnishee proceedings; (link to garnishee) or
   
3. Committal of Judgment Debtor to prison. (link to detention)

• Write a letter to court requesting for a mention before a Magistrate;
• File in an affidavit – in – support to explain the reasons for failing to enforce the judgment within 6 years;
• Attend court and make the application.
  

Attachment and sale of the Judgment Debtor's property

1)    What is attachment and sale of the Judgment Debtor's property?

It is an order of the court to attach the movable or immovable property of the judgment debtor and recover the proceeds resulting from the disposal of the assets. ​

How do I make an application for attachment and sale? ​

• Request by way of letter for a mention before the Court and file an affidavit-in-support of your application;
  
• Appear before the court and make an application for warrant for attachment and sale
  
• If the Magistrate grants your application, you are required to file in a 'warrant of attachment and sale of movable property' (link to Form 3 – warrant of attachment and sale of movable property) and to pay the necessary fee. You are required to list any property that is within your knowledge that can be subject to attachment and sale.
   
  

2)    What happens after I file in the 'warrant of attachment and sale of movable property'?

The Sheriff's office will contact the Judgment Creditor and inform the date in which they will execute the warrant of attachment. It is advisable for the Judgment Creditor to attend the execution of the warrant. Once the warrant has been executed, the Judgment Creditor is required to file a 'notice of attachment and inventory'; it is a notice to the Judgment Debtor the items that have been attached and will be sold off should the Judgment Debtor fail to settle the debt. If the Judgment Debtor fails to pay his debt then the Judgment Creditor will file in a 'Notice of Sale' with the Court. The Sheriff's office will then give a date for the auction. Judgment Creditor is advised to attend the said auction.

Judgment Creditor may contact the Sheriff's Office at the Supreme Court on more details about the execution and the auction.

3)    What properties are exempted from attachment and sale?

The following properties shall be exempted from attachment and sale –

1. The necessary wearing apparel, cooking utensils, bed and bedding of the Judgment Debtor, his wife and children;
2. If the Judgment Debtor is a manual worker, his tools required for his work.
3. If Judgment Debtor is a farmer, any tools required for the cultivation and breeding of crops and animals, and any cattle and buffaloes, as the Court deem necessary for the Judgment Debtor to earn his livelihood
4. If the Judgment Debtor is a fisherman, his fishing gear, nets, traps and bait, and such fishing baits as the court finds necessary for the Judgment Debtor to earn a living.
   

Garnishee proceedings

1)    What is a garnishee proceeding?

It is an execution proceeding in which the court directs a third party (known as 'garnishee' – usually bank or any institution indebted to the Judgment Debtor) to pay the Judgment Creditor the amount owed by the garnishee to the Judgment Debtor. In other words, the garnishee's debt to the judgment debtor is used to pay off the debt owed to the judgment creditor. This is known as a garnishee order. Example, the Judgment Creditor may apply for the bank to pay the money residing in the judgment debtor's bank account to the judgment creditor.

2)    How can I apply for a 'garnishee order'?

• ​File in a 'Garnishee Order Nisi' and serve to both Judgment Debtor and Garnishee at least 7 days before the mention date​;
  
• File in an affidavit of support of the application;
  
• On the mention date, the Court will ask if the Garnishee has any objection to the Garnishee Order or if the Garnishee has any reason why he should not pay to the Judgment Creditor;
   
  

3)    What happens if the Garnishee does not dispute to the order or has been served with the 'Garnishee Order Nisi'?

The Court may order for the garnishee to pay the amount as may be sufficient to satisfy the judgment, together with the costs of the garnishee proceedings.

4) What happens if the Garnishee disputes liability?

The Court may order for the matter to be tried for the Court to determine the Garnishee's liability.

5) What happens if the Garnishee does not dispute liability or the Court finds that the Garnishee is liable to pay?

The Judgment Creditor may apply for the Garnishee Order Nisi to be made absolute. The Garnishee must therefore pay the amount due.

6) What payments are exempted from attachment?

1. Wages of seamen, or of domestic servants, labourers or workmen;
   
2. Maintenance due from a husband to his divorced wife.
3. Debt due to the Judgment Debtor by Government or any public officer in his official capacity unless there is consent in writing from the Attorney General.

Detention of Judgment Debtor in prison

1)    What is a detention of a Judgment Debtor?

This is an execution proceeding whereby the Judgment Creditor applies for the Judgment Debtor to be put in prison as a 'civil prisoner' for not more than 30 days. 

2)    What must the Judgment Creditor prove for the court to order a detention of a Judgment Debtor?

The court must be satisfied with the following:

1. The Judgment Debtor has means to pay the sum he has defaulted to pay; and
2. The Judgment Debtor refuses or neglects to pay the defaulted sum.
    

3)    What is the process of applying for a detention of a Judgment Debtor?

• Judgment Creditor writes to court applying for a mention date.
• Judgment Creditor submit the reasons for their application (see the requirement as per number (2) above).
• Judgment Creditor pays a deposit of $600 as subsistence allowance for the Judgment Debtor's maintenance in prison.
• If the court is satisfied with the application, the court will order for the Judgment Debtor to be put in prison for not more than 30 days.

4)    When will the Judgment Debtor be released?

The Judgment Debtor will be released before the 30 days provided that the Judgment Debtor, or any person on his behalf, pays the amount owing to the Judgment Creditor, together with all costs and the subsistence allowance as mentioned above. If the Judgment Debtor is unable to pay, the Judgment Debtor will remain in prison until the expiry of the 30 days.

5)    What happens to the Judgment Creditor's deposit of $600 for the subsistence allowance if the Judgment Debtor is released early before the 30 days?

1. ​The cost of the Judgment Debtor's maintenance in prison is calculated at $20 per day and will be deducted from the $600 deposit. The remaining balance after deducting the cost of Judgment Debtor's maintenance for the days he spent in prison will be refunded back to the Judgment Creditor.
    
2. As explained above, the Judgment Debtor must pay back the cost of his maintenance (subsistence allowance) that is deducted from the Judgment Creditor's deposit before he can be released.
    

6)    What happened to the amount owed to the Judgment Creditor if the Judgment Debtor has not paid and has completed his detention?

The detention of the Judgment Debtor does not extinguish or remove the judgment debt. The judgment debtor is still expected to pay the judgment debt as well as the subsistence allowance after he / she is released from prison.

7)    How many times can the Judgment Debtor be put into prison?

The Judgment Debtor can only be committed to prison once for a judgment debt.

8)    Can the order for detention be suspended?

Order for detention may be suspended if the Judgment Debtor is paying the monthly installment fixed by the Court. The order can still be enforced within 12 months from the granting of the order by the court.