Services / Enforcement and asset recovery
The ten years to enforce, and when they start
A judgment in your favour does not last forever. It has a life, and the commonest error is to count from the day the case became final, which is not what the provision says.
From the judgment or order
The first paragraph of section 274 of the Civil Procedure Code provides that where the judgment debtor has not complied with the order for compliance, the judgment creditor may seek execution by seizure, attachment or other means within ten years from the date of the judgment or order. The wording ties to the date of judgment, not to the day the case became final or the day the debtor defaulted.
Work begun in time may be finished
The closing words of the first paragraph provide that where the creditor has asked the execution officer to seize property or attach a claim, or has partly carried out execution by other means within that period, the process may be carried through to completion. Work begun in time is therefore not cut off part-way, even if it runs past the ten years.
Instalment judgments count differently
The second paragraph provides that where the judgment orders payment by instalments, monthly or yearly, or performance at some future time, the ten years run from the day that obligation became enforceable. A judgment providing for payment over several years therefore has a separate starting point for each instalment rather than one for the whole.
An assignee may enforce
The third paragraph provides that where the judgment is for payment of money or the return or delivery of specific property, a person to whom the right has been transferred or who is subrogated to it may enforce, on application to the court to be substituted as judgment creditor. A debt that has changed hands therefore does not die with the change of creditor.
What to do as the period closes
Where little time remains and no assets have been found, the route is an inquiry under section 277 to find them, and then to seize or attach whatever is found before the period closes, since once begun the first paragraph allows completion. Counting the days back from the date of judgment is therefore work for the first day of the file, not the last.
PREPARE
What to bring
- The judgment or order, with the date on its face
- The order for compliance issued on it
- A record of what execution steps have been taken and when
- Records of any partial payment by the debtor
- Assignment documents where you are not the original creditor
QUESTIONS
Questions this raises
The case became final three years after the first-instance judgment. Which date starts the ten years?
The first paragraph of section 274 uses the words from the date of the judgment or order, which is not the same as the date the case became final. Where the case has been through appeal, which judgment governs is a question to be read from the documents themselves, so the papers should be checked rather than the date estimated.
I seized land in year eight and the ten years have now passed.
The closing words of the first paragraph provide that where seizure or attachment was sought within the period, execution against that property may be carried through to completion. A seizure effected in time therefore continues, but going after a fresh asset never seized is a different question.
LAW
The legislation
- Civil Procedure Code, sections 274 and 277
ENQUIRIES
