Writ of Seizure and Sale

Under enforcement of judgment, writ of execution can be divided into 3 per

Order 46 of ROC 2012, namely; writ of seizure and sale, writ of possession and writ of
delivery. Writ of seizure and sale in general can be defined as application by judgment
creditor before the court to enable Sheriff to seize and sell property of the judgment
debtor in order to discharge him of his debt.

Firstly, whether leave is required or not. In the event that the applicant falls under
any of circumstances as stipulated under Order 46 Rule 2(1) of ROC 2012, leave is
necessary before any application to issue writ of execution be granted.

Secondly, application to issue writ of execution. Application for leave to issue writ
shall be made ex parte by way of notice of application, supported with affidavit clarifying
the judgment which sought to be enforced, reason to support application, and
necessary information pertaining and depending to the circumstances of the application
itself, per Order 46 Rule 3(2) of ROC 2012. Application shall be made in Form 88, as
provided under Order 46 Rule 3(1) of ROC 2012.

However, no application shall be made if full settlement of debt has been made,
even if bona fide mistake by the judgment creditor that he is ignorant with regard to the
payment of the debt, stated in Cubitt v Gamble. Issuance of writ after full settlement
will amount to trespass to goods, entrenched in Clissold v Cratchley.

Thirdly, time for application to issue writ. Application to issue writ shall be made
within one year from the date leave is granted, as provided under Order 46 Rule 2(3) of
ROC 2012.

Fourth, forms of writ. Forms of writ are depending on the type of property to be
seized; whether it is movable or immovable property. First, movable property. Writ for
seizure and sale of movable property shall be made in Form 84 or 84A, as provided
under Order 45 Rule 12(1) of ROC 2012. Judgment creditor may only apply for seizure
and sale of property up to the extent of debts due, but is prohibited to seize any basic
apparel, tools of trade and wages or salary below RM200 of the judgment debtor, as it is

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considered as necessities and not the wants of the debtor, per Section 3(1) of
Debtor’s Act 1967. Once order for seizure and sale has been granted, the property
seized shall now be under the authority of the Sheriff, and any disposition or alienation
of the judgment debtor property shall be void against the Sheriff, per Order 47 Rule 4
of ROC 2012.

On behalf of the judgment debtor, application to set aside the writ of execution
can be made, so long that there is sufficient ground to show that his property shall not
be seized and sold to discharge him of his debts. In Tan Kim Khuan v Tan Kee Kiat
(M) Sdn Bhd, the court stated that the burden of proving lies before the debtor to
convince the court to discharge the order by offering necessary evidence. Nonetheless,
in the event of irregularity, Sheriff or any officers can be pinned with any liability for
damages incurred so long it is within their work scope, stipulated in Williams v
Williams & Nathan.

Second, immovable property. Writ of seizure and sale of immovable property

shall be in Form 85, stated under Order 45 Rule 12(1) of ROC 2012. As compared to
movable property, as immovable property cannot be physically seized, prohibitory order
shall be applied before the court to prevent the judgment debtor from dealing with the
property. There are several procedures to be complied with, as stated in Perwira Affin
Bank v Ahmad Tajuddin.

First, application for prohibitory order. Application shall be made ex parte by way
of notice of application which then supported with affidavit, as provided under Order 47
Rule 6(b) and Rule 6(c) of ROC 2012.

Second, service of prohibitory order. Once application has been made and
approved by Court or Judge, copy of such order shall be served to the judgment debtor
and all of the judgment creditor.

Third, registration of prohibitory order. Simultaneous to the service, the order

shall also be registered at the Registry of Title or Land Office, in order to give effect of
such order, as stated under the last limb of Order 47 Rule 6(d) of ROC 2012. Once it is

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registered, the prohibitory order shall take effect and the property is now deemed
seized, stipulated under Order 47 Rule 6(f) of ROC 2012.

Fourth, duration of the order. It shall be made known that prohibitory order for
immovable property of the judgment debtor shall remain valid for a period not exceeding
six months, per Order 47 Rule 6(g) of ROC 2012. However, sale of the property shall
only be made 14 days after the date of registration of the prohibitory order, stated under
Order 47 Rule 7(a) of ROC 2012.

Once the 6 months duration of prohibitory order has expired, application for
extension can be made before the court per Order 3 Rule 5 of ROC 2012. However,
extension of time will only be given if there is reasonable ground to do so, and the court
will exercise the discretion to give extension with cautious as the order works in the
nature of caveat and interfere with the rights of the registered proprietor, stated in Ban
Hin Lee Credit v Utama Computer Centre.

Adham Hensem