NOVEMBER 28 –– In a civil action, when the plaintiff (the party who sues) has obtained a judgment in his or her favour from the court against the defendant (the party who is sued), the plaintiff will be referred to as the judgment creditor (JC) while the defendant will be known as the judgment debtor (JD).
The JC becomes entitled to demand from the JD the payment of the sum stated in the judgment called the judgment sum (JS).
If the JD refuses to pay the JS there are a few ways that the JC can consider to recover the judgment debt from the Judgment Debt. The various ways fall under enforcement of judgment provided by the rules of court.
The most usual method of enforcement of JS is by Writ of Seizure and Sale (WSS).
WSS is to enforce a judgment or order for the payment to any person of a sum of money or costs. It must be in the prescribed form, and is expressed in the form of a command directing the court’s bailiff to seize the property identified by the JC as belonging to the JD and if necessary to sell so much of the property seized as may be sufficient to satisfy the amount of the JS and the costs of execution, and also interest on the amount of the JS from the date of judgment until payment as specified in the WSS.
The WSS must correspond with the judgment as to the names of the parties and the subject matter of the judgment, and must bear the date of the day of its issue.
Bailiff’s duties
It is the bailiff’s duty to seize and sell any property which he has the power to seize, to an amount reasonably sufficient, but not more than sufficient, to satisfy the JS and interest and his own expenses.
The seizure and sale of the property should be enough to satisfy the WSS together with the bailiff’s expenses and the expenses of the sale, which is usually carried out by an auctioneer.
The bailiff must not sell further any property of the JD after the sum required has been realised at the sale.
The bailiff also has duties to give notice of seizure, prepare an inventory of property seized and after sale to pay out any balance in accordance with the rules of court.
Right of, and after, entry
The bailiff, or his officers, is empowered to enter the JD’s property identified in the WSS. It may take place between the hours of 9am and 4pm, unless the bailiff orders otherwise.
To enter the JD’s property, in the first instance the bailiff or his officers will usually attempt to enter by obtaining the permission of the occupier. However, if no one is available to permit entry or entry is refused, the bailiff or his officers may legally effect an entry into the building if necessary by breaking open any outer or inner door or window of the property or any receptacle in it, using such force as is reasonably necessary to effect entry.
The JD cannot claim entry into his or her property is without warrant (authority) when the WSS is in effect a warrant to enter.
Once an entry has been made, the bailiff or his officers will mark items of the JD’s property capable of being seized with official labels, which are then within the legal possession of the court.
The doors of particular rooms, cupboards or suitcases may be broken open in order to complete the execution of the WSS. It is not necessary to demand that inner doors, cupboards or suitcases be opened before the breaking.
The bailiff must not remain upon the JD’s property for an unreasonable time. The bailiff cannot overstay.
WSS is a command to the bailiff, to do what he is to do. He is the proper officer of the court.
To borrow a phrase popularised by 1990s Singapore sitcom character Phua Chu Kang, don’t play play with the bailiff.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
