Services / Enforcement and asset recovery
Staying execution, and withdrawing it
Staying execution and withdrawing it are different things in different provisions. The first pauses matters; the second ends that process. And within the withdrawal provision sit two subsections that look alike and whose consequences are not alike at all.
The grounds on which execution is stayed
Section 289 of the Civil Procedure Code requires the execution officer to stay execution in four situations: where the court has ordered a stay because an application for a new trial was made and notice given under section 199 quinquies first paragraph or section 207; where the court has ordered a stay and sent the order to the officer; where the judgment creditor gives written notice agreeing to a stay for a period; and where the creditor seeking execution fails to comply with section 154.
A stay by agreement needs every consent
Section 289(3) does not let the creditor agree to a stay alone. The written notice agreeing to stay execution for a period or on conditions must carry the written consent of the judgment debtor and of any third party with an interest in the execution. A negotiation settled between two sides only may therefore not be enough to bring execution to a halt.
A stay where the debts could be set off
Section 290 opens a further route: the judgment debtor may petition for a stay on the ground that they have already sued the judgment creditor in another case in the same court which is undecided, and that if they succeed there will be no need for seizure, attachment or sale because the debts can be set off. If the court finds the ground arguable it may order a stay, and may require money to be deposited or security given. An order under this section is final.
The grounds for withdrawing execution
Section 292 requires the execution officer to withdraw execution in seven situations. They include where the court so orders because the debtor has appealed and deposited with the court enough to meet the judgment and costs, or given security satisfactory to the court; where the judgment has been reversed or set aside or the writ revoked; where a new trial has been granted; where the court orders withdrawal under section 293; and where the debtor deposits with the execution officer enough to satisfy the judgment together with costs.
Waiving and withdrawing are far apart
Subsections (6) and (7) of section 292 read alike at a glance and are not alike at all. Subsection (6) covers a creditor giving written notice that it waives the right to execute, and the provision adds that in that case the creditor may never execute against the debtor for that debt again. Subsection (7) covers a creditor giving written notice asking to withdraw execution, and carries no such closing words. The wording of the letter sent therefore matters more than it appears to.
PREPARE
What to bring
- The writ of execution and the record of seizure or attachment
- Any other case pending between the same parties
- Evidence of money deposited or security offered
- Correspondence with the creditor about pausing execution
- Any third parties with an interest in the execution
QUESTIONS
Questions this raises
The creditor has agreed to pause. What is needed?
Section 289(3) requires the creditor to give written notice to the execution officer, with the written consent of the judgment debtor and of any interested third party. An understanding reached in conversation therefore does not stop execution. What stops it is the letter reaching the execution officer with all the consents in place.
We have settled, so execution will be withdrawn.
The care needed is in the wording. Section 292(6) concerns waiving the right to execute, with the consequence that the creditor may never execute against the debtor for that debt again; subsection (7) concerns asking to withdraw execution and has no such effect. Both sides should therefore check which words the letter uses, because one may want the result under (6) while the other reads it as merely (7).
LAW
The legislation
- Civil Procedure Code, section 289
- Civil Procedure Code, section 290
- Civil Procedure Code, section 292
ENQUIRIES
