EVOLUCION Y APLICACIÓN DEL CAR EN NUESTRO

I EXECUTION GENERALLY

Judgment or order to be obeyed without demand

350 Where any person is by any judgment or order directed to pay any money, or deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand therefor, but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand. R. 350.

Conditional judgment, Breach or non-performance of condition

351 Where any person has obtained any judgment or order upon condition, and such judgment or order does not specifically provide for default, and he has not complied with such condition, he shall be deemed to have waived or abandoned such judgment or order so far as the same is beneficial to himself, and any other person interested in the matter may, on breach or non-performance of the condition after two days notice to the party entitled to the benefit of such judgment or order, take either such steps as the judgment

Execution to enforce payment of money

352 Every person to whom any sum of money or any costs shall be payable under a judgment or order shall, so soon as the money or costs shall be payable, be entitled to sue out one or more writ or writs of fieri facias to enforce payment thereof, subject nevertheless as follows:

Where time allowed by judgment

(a) if the judgment or order is for payment within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period;

Stay of execution

(b) the court may, at or after the time of giving judgment, or making an order, stay execution until such time as it shall think fit. R. 352.

Meaning of “writ of execution”

353 In these rules the term “writ of execution” shall include writs of fieri facias, sequestration and attachment and all subsequent writs that may issue for giving effect thereto; and the term “issuing execution against any party” shall mean the issuing of any such process against his property, as under the preceding rules shall be applicable to the case. R. 353.

Execution of judgment on condition

354 Where a judgment or order is to the effect that any party is entitled to any relief, subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon the fulfilment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the court for leave to issue execution against such party; and the court may, if satisfied that the right to relief has arisen according to the terms of the judgment or order, order that execution issue accordingly or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in any action may be tried. R. 354.

(The next rule is Rule 357)

Praecipe for execution

357 A writ of execution shall be issued upon the applicant filing a praecipe therefor. Form 37 shall be used. R. 357.

Execution on judgments

358 Every writ of execution issued on a judgment or order shall bear date the day of its issue and shall state the date of the judgment or order on which it is issued, and shall remain in force for a period of 10 years from the date of such judgment or order. Forms 38, 39 and 40 may be used. R. 358.

Execution to any sheriff

359(1) When entitled thereto, the party in whose favour such judgment has been entered may have one or more writs of execution directed to any of the sheriffs.

Separate writ for costs

(2) Upon any judgment or order for the recovery of a sum of money and costs, the party entitled thereto may issue a writ of execution for the recovery of the amount of the judgment exclusive of costs and thereafter may issue a separate writ of execution for the recovery of the costs. R. 359.

Indorsement of writ of execution

360 Every writ of execution shall be indorsed with the name and place of business of the solicitor issuing the same or the name and address of the party if the same is issued by the party in person, and shall be indorsed with a direction to the sheriff as in Form 38. R. 360.

Expenses of execution

361 In every case of execution the party entitled to execution may levy the poundage, fees and expenses of execution over and above the sum recovered. R. 361.

Leave to issue execution in certain cases

362 In the following cases, namely:

(a) where any change has taken place by death or otherwise in the parties entitled or liable to execution;

Assets in futuro

(b) where a party is entitled to execution upon a judgment of assets in futuro; the party alleging himself to be entitled to the execution may apply to the court ex parte,

or as the court shall determine, for leave to issue the execution accordingly. And such court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in any action may be tried. And in either case the court may impose such terms as to costs or otherwise as shall be just. R. 362.

Set-off of judgments

362A Where there are judgments between the same parties in separate actions or in the same action, the court may order that one judgment be set off against another and direct that execution may issue in respect of the balance only. An order for set-off against a judgment for maintenance shall not be made where hardship would be caused thereby. Gaz. Jan. 29/82. New. Am. Gaz. Oct. 25/91. R. 362A.

Enforcement of orders

363 Every order of the court in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect. R. 363.

Execution by or against a person not a party

364 Any person not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to such cause or matter. R. 364.

Facts arisen too late to be pleaded, Stay of execution

365 No proceeding by audita querela shall hereafter be used; but any party against whom a judgment has been given may apply to the court for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded; and the court may give such relief and upon such terms as may be just. R. 365.

Court may order act to be done at expense of part refusing

366 If a mandamus granted in an action or otherwise, or a mandatory order, injunction or judgment for the specific performance of any contract be not complied with, the court besides or instead of proceeding against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained or some other person to be appointed by the court at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and execution may issue for the amount so ascertained and costs. R. 366.

Enforcement of judgment against corporation

367 Any judgment or order against a corporation wilfully disobeyed may, by leave of the court, be enforced by sequestration against its corporate property or by an order of committal against the directors or other officers thereof. R. 367.

If money made on goods costs of execution lands, Return in each case

368 If the amount authorized to be made and levied under the writ is paid voluntarily or is made and levied out of goods, the person issuing the same or any writ against lands, shall be entitled to the expenses thereof as against lands, or of any seizure or advertisement of land thereunder, and the return to be made by the officer charged with the execution of the writ as against lands, to such writ, shall be to the effect that the amount has been so made and levied as aforesaid. R. 368.

Writ of venditioni exponas abolished, Sheriff to sell on order of a judge

369 It shall not be necessary to issue a writ of venditioni exponas but where property is held by the sheriff unsold for any reason the execution creditor may obtain an order on an ex parte application directing the sheriff to sell such property at the best price obtainable. R. 369.

Execution of delivery of property or recovery of assessed value

370(1) Where by judgment or order of the court any party becomes entitled to the recovery of any property other than land or money, such party may issue a writ of delivery of the property without giving the other party the option of retaining the property upon paying the assessed value, if any, and by such writ a sheriff may, at the option of the party entitled thereto, be commanded, if the said property other than land or money cannot be found, to cause to be made of the defendant’s goods the assessed value, if any, of the property with costs, which writ shall be in Form 40.

(2) In either case if the party issuing such writ be entitled to recover damages or costs against the other party, the sheriff may be required by said writ to cause to be made of the defendant’s goods the amount of such damages or costs or either damages or costs as the case may be, in which case the writ shall be in Form 40. R. 370.

Writ of possession for recovery of land

371 A judgment or order that a party do recover possession of any land, or that any person therein named do deliver up possession of any land to some other person, may be enforced by writ of possession without any order for such purpose, after 15 days from the entry of the judgment or service of a copy of the order, which writ shall be in Form 39 and shall be effective to enable the sheriff to maintain the party entitled to possession in possession of the said land as against any party bound by the proceedings or any person or persons claiming through or under such party. R. 371.

Order for committal

372 A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by committal. It shall in no case be necessary to apply for a writ of attachment. R. 372.

Execution for recovery of land and costs

373 Upon any judgment or order for the recovery or delivery of possession of any land and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs, at the election of the successful party. R. 373.

Conduct of proceedings to confirm sale of land

374 In all cases where lands are sold under execution, the sheriff shall give the conduct of the proceedings to confirm the sale to the party or one of the parties under whose special instructions the lands have been sold:

provided, however, that the court may at any time order that the conduct of such proceedings be given to any other interested party. R. 374.

Writ of sequestration

375 Where a person is taken or detained in custody under an order for committal for contempt of court, then upon proof that the person has been so taken or is so detained, the party prosecuting the judgment shall be entitled upon motion to a writ of sequestration against the estate and effects of the disobedient person. R. 375.

Writ of sequestration without attachment

376 If an order for committal for contempt of court cannot be executed against the person refusing or neglecting to obey the judgment, by reason of his being out of the jurisdiction of the court, or his having absconded, or of an impossibility with due diligence to find him, an order may be granted for a writ of sequestration against the estate and effects of the disobedient person. R. 376.

Directed to sheriff

377 A writ of sequestration shall be directed to the sheriff unless otherwise ordered. R. 377.

When committed to gaol for contempt court may modify order

378 In case a person has been committed to gaol for contempt of court, there to be detained or imprisoned until he shall have purged his contempt, if it be made to appear that he is in actual custody under such committal, the court may modify the order and limit the term of imprisonment or grant such other relief as may in the nature and circumstances of the case seem just, but any relief that may be granted to any such person shall not relieve him from any civil liability. R. 378.

II POUNDAGE, INTEREST, ETC.

Poundage

379 In case a part only is levied by the sheriff on or by force of any execution against goods and chattels, the sheriff shall be entitled, besides his fees and expenses of execution, to poundage only upon the amount so made by him, whatever be the sum indorsed upon the writ. R. 379.

Sheriff’s charges where satisfaction obtained under writ at other judicial centre

380 In the case of writs of execution upon the same judgment to the sheriffs of several judicial centres under which the personal estate of the judgment debtor or debtors has been seized or advertised, but not sold by reason of satisfaction having been obtained under or by virtue of a writ directed to the sheriff of some other judicial centre, and no money has been actually made on such execution, the sheriff shall not be entitled to poundage but to mileage and fees only for the services actually rendered and performed by him, and the court may allow him a reasonable charge for such services in case no special fees therefor are assigned in any tariff of costs. R. 380.

Sheriff’s charges on withdrawal, stay, etc., of execution, Appeal

381 Upon the settlement of an execution either in whole or in part by payment, levy, or otherwise, or upon the withdrawal, stay or setting aside of an execution, the sheriff or officer claiming any fees, poundage, incidental expenses, or remuneration which have not been taxed, shall, upon being required by any party interested, within 48 hours deliver a copy of his bill in detail to the applicant. Such bill shall be taxed by the proper officer upon the applicant obtaining and serving an appointment for such taxation. Either party dissatisfied with the taxation may appeal to the court for a review of such taxation. R. 381.

Sheriff’s costs

382 No sheriff shall collect any fees, costs, poundage, or incidental expenses, after having been required to have them assessed, without assessment. R. 382. Gaz. Dec. 13, 2002. New.

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