On 24/05/2013,
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incorporating all amendments published on or before 24/05/2013.
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ORDER 74
DEBTORS ACT
ARREST OF JUDGMENT DEBTOR
2. An application for an order of arrest under section 3 of the Act must be made by ex parte summons supported by an affidavit to a Judge in chambers, unless the Court otherwise orders.
3. An order for arrest under section 3 of the Act must be in Form 185.
4.
—(1) Before any arrest is made under section 3 or 24 of the Act, the judgment creditor must, unless the Registrar otherwise orders, deposit in the Registry a sufficient sum of money to defray the cost of bringing the debtor before the Court, and detaining him in custody pending his appearance.
(2) Before an order of commitment made under the Act is executed, the judgment creditor must deposit in the Registry a sufficient sum of money to provide for the subsistence of the debtor for the period of imprisonment at such rate as may be prescribed by the Minister by notification in the Gazette.
(3) Order 46, Rules 12 and 13, shall apply with the necessary modifications to the sums of money deposited under this Rule.
ARREST OR ATTACHMENT
BEFORE JUDGMENT
BEFORE JUDGMENT
6.
—(1) An order of arrest or attachment of property before judgment must state the amount of claim and costs in respect of which it is issued, and before delivery to the Sheriff, be endorsed with the plaintiff’s address for service.
(2) An order under paragraph (1) must be in one of the forms in Form 187.
7. Rule 4 shall apply, with the necessary modifications, to a plaintiff at whose instance a defendant is arrested or committed under Part II of the Act.
8. Any property liable to seizure under Part III of the Act shall be seized in the same manner as a seizure under a writ of seizure and sale.
9.
—(1) Before any order of attachment of property is executed, the plaintiff must deposit in the Registry a sufficient sum of money to defray the cost of the attachment and of keeping possession of the property.
(2) Order 46, Rules 12 and 13, shall apply with the necessary modifications to the sums of money deposited under this Rule.
10. Where any property attached under an order of attachment is released by the Sheriff on the defendant paying to the Sheriff the sum stated in the order of attachment as the amount claimed by the plaintiff and costs as stated therein together with the costs of the execution up to the time of such payment, or under section 18 of the Act, the proper officer must give a receipt and keep the moneys in such place as directed by the Sheriff to abide by the order of the Court.
JUDGMENT DEBTOR SUMMONS
11A.
—(1) A judgment debtor summons to enforce a judgment or order for the payment of money, whether by instalments or otherwise, must be in one of the forms in Form 191.
(2) A judgment debtor summons is issued on its being sealed by an officer of the Registry.
(3) Unless the Court otherwise orders, a judgment debtor summons must be served personally on the person summoned at least 7 days before the day fixed for the hearing thereof.
11B. Where a judgment has been given or an order made against 2 or more persons, the person entitled to enforce the judgment or order may require a judgment debtor summons to be issued against each or any of the persons liable under the judgment or order.
11C.
—(1) Where a judgment is given or order made against a firm, a judgment debtor summons may be issued against any person against whom execution may be issued to enforce such judgment or order under Order 77.
(2) Where the person entitled to enforce such judgment or order desires to issue a judgment debtor summons against any other person, he must apply for leave of the Court by ex parte summons in Form 189 supported by affidavit in Form 190.
(3) Where an order is made under paragraph (2), a copy of the affidavit must be served with the judgment debtor summons.
(4) If the person alleged to be liable does not appear on the day fixed for the hearing of the judgment debtor summons, he shall be deemed to admit his liability to pay the amount due, but if he appears and denies his liability the Court may determine the question of liability on the evidence then before it or may order the issue of liability to be tried in such manner as it thinks fit.
JUDGMENT NOTICE
14.
—(1) On the hearing of a judgment notice, the Court may make an order of commitment or vary the instalment order as it thinks just.
(2) If an order of commitment is made, the Court may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of which the order is made.
COMMITMENT
15. An order of commitment under section 6(1), 15 or 24(8) of the Act must be in Form 194.
16. Where an order of commitment for non-payment of money is made, the debtor may, at any time, either to the Sheriff or, if he is in prison, to the officer in charge of the prison, pay the amount stated in the order and obtain his discharge.
17.
—(1) Where any judgment debt, in respect of which a debtor is imprisoned under the Act, is satisfied by payment or otherwise, the judgment creditor must lodge with the Registrar a certificate of satisfaction signed by him in Form 195.
(2) If the judgment creditor makes default in lodging such certificate, the debtor, or any person on his behalf, may apply to the Court for an order for his discharge, and the Court in making such order may direct that the costs of the application be paid by the judgment creditor.
(3) An order under this Rule must be in Form 196.
MISCELLANEOUS
19. Whenever the Court discharges a surety under section 14 of the Act, it may at the same time order the defendant to be taken into custody and committed to prison for a term which may extend to 6 weeks unless he sooner gives fresh security.
20. The money deposited, if any, and the security and all proceedings thereon shall be subject to the order and control of the Court.
21. Where at the hearing of any proceedings under the Act the debtor satisfies the Court that a bankruptcy order under the Bankruptcy Act (Chapter 20) has been made against him and that the debt was provable in the bankruptcy or in the administration, no order shall be made:
Provided that where an order of commitment has been made, the order if not executed shall be recalled and cancelled, and if the debtor is in prison, he shall be discharged.
22. Any order of commitment or arrest of a judgment debtor under the Act shall bear the date of the day on which it was made, and shall continue in force for one year from and including such date and no longer, but it may be renewed subject to the conditions and in the manner prescribed for the renewal of writs of execution.
22A. An order for the discharge of a debtor under section 25 of the Act shall be in Form 197.