Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 47

WRITS OF FIERI FACIAS

1. Power to stay execution by writ of
fieri facias (O. 47, r. 1)

(1) Where a judgment is given or an order made for the payment by any person
of money, and the Court is satisfied, on an application made at the time of
the judgment or order, or at any time thereafter, by the  judgment debtor or
other party liable to execution-

   (a)  that there are special circumstances which render it inexpedient to
        enforce the judgment or order; or

   (b)  that the applicant is unable from any cause to pay the money, then,
        notwithstanding anything in rule 3, the Court may by order stay the
        execution of the judgment or order by writ of fieri facias either
        absolutely or for such period and subject to such conditions as
        the Court thinks fit.

(2) An application under this rule, if not made at the time the judgment is
given or order made, must be made by summons and may be so made
notwithstanding that the party liable to execution did not acknowledge service
of the writ or originating summons in the action or did not state in his
acknowledgment of service that he intended to apply for a stay of execution
under this rule pursuant to Order 13, rule 8.

(3) An application made by summons must be supported by an affidavit made by
or on behalf of the applicant stating the grounds of the application and the
evidence necessary to substantiate them and, in particular, where such
application is made on the grounds of the  applicant's inability to pay,
disclosing his income, the nature and value of any property of his and the
amount of any other liabilities of his.

(4) The summons and a copy of the supporting affidavit must, not less than 4
clear days before the return day, be served on the party entitled to enforce
the judgment or order.

(5) An order staying execution under this rule may be varied or revoked by a
subsequent order.

3. Separate writs to enforce payment of
costs, etc. (O. 47, r. 3)

(1) Where only the payment of money, together with costs to be taxed, is
adjudged or ordered, then, if when the money becomes payable under the
judgment or order the costs have not been taxed, the party entitled to enforce
that judgment or order may issue a writ of fieri facias to enforce payment of
the sum (other than for costs) adjudged or ordered and, not less than 8 days
after the issue of that writ, he may issue a second writ to enforce payment of
the taxed costs.

(2) A party entitled to enforce a judgment or order for the delivery of
possession of any property (other than money) may, if he so elects, issue a
separate writ of fieri facias to enforce payment of any damages or costs
awarded to him by that judgment or order.

6. Order for sale in execution of judgment (O. 47, r. 6)

(1) Every sale in execution of a judgment shall be made under the direction of
the Registrar and shall be conducted according to such orders, if any, as
the Court may make on application of the person at whose instance the
writ of execution under which the sale is to be made was issued, of the person
against whom that writ was issued or of the bailiff to whom it was issued. In
the absence of any such application the sale shall be made by public auction.

(2) Such an application must be made by summons and the summons must contain a
short statement of the grounds of the application.

(3) Where the applicant for an order under this rule is not a bailiff, the
bailiff must, on the demand of the applicant, send to the  applicant a list
containing the name and address of every person at whose instance any other
writ of execution against the goods of the judgment  debtor was issued and
delivered to the bailiff (in this rule referred to
as "the bailiff's list"); and where the bailiff is the applicant, he must
prepare such a list.

(4) Not less than 4 clear days before the return day the applicant must serve
the summons on each of the other persons by whom the application might have
been made and on every person named in the bailiff's list.

(5) Where any goods of a debtor are taken in execution, and the bailiff has
notice of another execution or other executions, the Court shall not consider
an application for sale otherwise than by auction until service of the summons
on the person or persons named in the bailiff's list has been effected.

(6) The applicant must produce the bailiff's list to the Court on the hearing
of the application.

(7) Every person on whom the summons was served may attend and be heard on the
hearing of the application.

7. Special rules as to the sale of immovable
property (O. 47, r. 7)

(1) At any time within 10 days from the date of sale of any immovable property
in execution of a judgment, application may be made to the Court to set aside
the sale on the ground of any material irregularity in the conduct of the
sale, but no such sale shall be set aside on the ground of such irregularity
unless the applicant proves to the satisfaction of the Court that he has
sustained substantial injury by reason of such irregularity.

(2) (a) If no such application is made the sale shall be deemed absolute.

   (b)  If such application is made and the objection is disallowed, the Court
        shall make an order confirming the sale.

   (c)  If such application is made and the objection is allowed, the  Court
        shall make an order setting aside the sale for irregularity.

(3) Whenever a sale of immovable property is set aside for irregularity the
purchaser shall be entitled to receive back any money deposited or paid by him
on account of such sale, with or without interest, to be paid by such parties
and in such manner as it may appear to the Court proper to direct.

(4) (a) After a sale of immovable property has become absolute in manner as
aforesaid the Court shall grant a certificate to the person who has been
declared the purchaser at such sale to the effect that he has purchased the
right, title and interest of the judgment debtor in the property sold.

   (b)  Such certificate shall be liable to the same stamp duty as an
        assignment of the same property and, when duly stamped as aforesaid,
        shall be taken and deemed to be a valid transfer of such right, title
        and interest and may be registered in the Land Office under the Land 
        Registration Ordinance ( Cap 128).

(5) (a) Where the property sold consists of immovable property in the
occupancy of the judgment debtor, or of some person on his behalf, or of some
person claiming under a title created by the judgment  debtor subsequently to
the attachment of the property, the Court shall, on the application of the
purchaser, order delivery of the property to be made by putting the party to
whom the property has been sold, or any person whom he may appoint to receive
delivery on his behalf, in possession thereof and, if necessary, by removing
any person who may refuse to vacate the same.

   (b)  Where the property sold consists of immovable property in the
        occupancy of any other person entitled to occupy the same the Court
        shall, on the application of the purchaser, order delivery thereof to
        be made by affixing a copy of the certificate of sale in some
        conspicuous place on the property or at the court house.

(6) (a) If the purchaser of any immovable property sold in execution of a
judgment is, notwithstanding the order of the Court, resisted or obstructed in
obtaining possession of the property, the provisions of this Order relating to
resistance or obstruction to the execution of the judgment for immovable
property shall be applicable in the case of such resistance or obstruction.

   (b)  If it appears that the resistance or obstruction to the delivery of
        possession was occasioned by any person other than the 
        judgment debtor claiming a right to the possession of the property
        sold as proprietor, mortgagee, lessee, or under any other title, or if
        in the delivery of possession to the purchaser any such person
        claiming as aforesaid is dispossessed, the Court, on the complaint of
        the purchaser or of such person claiming as aforesaid, if made within
        one month from the date of such resistance or obstruction or of such
        dispossession, as the case may be, shall inquire into the matter of
        the complaint and make such order as may be proper in the
        circumstances of the case.

   (c)  The person against whom any such order is made shall be at liberty to
        bring an action to establish his right at any time within 3 months
        from the date of the order.

8. Special rules as to the sale of movable
property (O. 47, r. 8)

(1) (a) Where the property sold consists of movable property in the possession
of the judgment debtor, or to the immediate possession of which
the judgment debtor is entitled, and of which actual seizure has been made,
the property shall be delivered to the purchaser.

   (b)  Where the property sold consists of movable property to which
        the judgment debtor is entitled subject to a lien or right of any
        person to the immediate possession thereof, the delivery to the
        purchaser shall as far as practicable be made by the bailiff giving
        notice to the person in possession prohibiting him from delivering
        possession of the property to any person except the purchaser.

(2) Where the property sold consists of debts, not being negotiable
instruments, or of shares in any public company or corporation, the Court
shall, on the application of the purchaser, make an order prohibiting the 
judgment debtor from receiving the debts and his debtor from making payment
thereof to any person except the purchaser, or prohibiting the person in whose
name the shares are standing from making any transfer of the shares to any
person except the purchaser, or receiving payment of any dividends thereon,
and the manager, secretary or other proper officer of the company or
corporation from permitting any such transfer or making any such payment to
any person except the purchaser.

(3) Where the property sold consists of a negotiable instrument of which
actual seizure has been made the same shall be delivered to the purchaser.

(4) (a) If the execution of a transfer by any person in whose name any share
in a public company or corporation is standing, or the endorsement by any
person of any negotiable instrument, or the execution by any person of any
deed or other instrument relating to immovable property or any interest
therein, is lawfully required to give effect to any sale in execution of a
judgment, the Registrar, with the sanction of the Court, may-

   (i)  execute such transfer; or

   (ii) endorse such negotiable instrument; or

   (iii) execute such deed or other instrument.

   (b)  The execution of such transfer, the endorsement of such negotiable
        instrument and the execution of such deed or other instrument by the
        Registrar shall have the same effect as the execution and the
        endorsement by the person whose execution or endorsement is so
        required as aforesaid.

   (c)  Until the execution of such transfer or the endorsement of such
        negotiable instrument the Court may, by order, appoint some person to
        receive any dividend or interest due in respect of any such share or
        negotiable instrument.