Services / Enforcement and asset recovery
My property was seized: the sixty-day claim
This happens most often to people who were never parties to the case at all, such as someone sharing a house with the debtor whose own belongings are taken. The law provides a remedy, but on a short clock running from the seizure rather than from knowledge of it.
Who may apply
The first paragraph of section 323 of the Civil Procedure Code allows a person who claims that the defendant or judgment debtor is not the owner of the property seized, or that they are a co-owner with title or possessory rights in immovable property held in defined shares, or a co-owner of divisible movable property, or a person already entitled to have their right registered in it, to apply for the release of the whole, part, or their own share.
Sixty days, and then what
Section 323 requires the application to be made to the court that issued the writ within sixty days of the seizure. Where that is not possible, it may be made later only if there are special circumstances, and not later than seven days before the first date fixed for the auction, save that where the failure was due to circumstances beyond control it may be made afterwards, but still before the sale or other disposal.
The immediate effect of the court accepting it
The third paragraph provides that once the court accepts the application, copies go to the judgment creditor, the judgment debtor and the execution officer, and that on receiving it the officer must stay the sale or disposal pending the decision, unless the property falls under section 332. That is why filing in time has real effect rather than being a formality.
The risk of a claim without substance
The fourth paragraph lets the judgment creditor allege that the application is without substance and filed to delay execution, and where there is prima facie evidence of that the court may require the applicant to deposit money or provide security, striking the case out if the order is not obeyed. The closing paragraph further allows the creditor to apply within thirty days of the application being dismissed for compensation. Filing to buy time therefore carries a price.
The evidence needed from day one
What decides these cases is evidence of ownership predating the seizure. A receipt naming the buyer, a sale agreement, registration documents, or payment from one's own account all carry far more weight than assertion. Items bought with cash and no paperwork at all are, in practice, the hardest group to establish.
PREPARE
What to bring
- The seizure notice or report, with the date of seizure
- Evidence of ownership predating the seizure
- Receipts or payment records from your own account
- Registration documents where the property is of a registrable kind
- The notice of sale, to establish the date fixed
QUESTIONS
Questions this raises
I only found out two months after the seizure.
Section 323 runs the sixty days from the seizure, not from knowledge. The statute leaves two further openings: special circumstances, where the application must come at least seven days before the first sale date, and circumstances beyond control, where it may come later but still before the sale. The first thing to establish is therefore the date fixed for sale, because every remaining route is measured against it.
I am a co-owner with the debtor.
The first paragraph of section 323 covers co-owners, both of immovable property held in defined shares and of divisible movables, and allows release of one's own share. What is needed is evidence of which share is yours and how it was acquired, as distinct from a bare assertion that the property belongs to both.
LAW
The legislation
- Civil Procedure Code, section 323
ENQUIRIES
