Malawi Act or statute

Malawi legislation

Sheriffs Act, 1967

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Jurisdiction: Malawi
Structure: 50 provisions
Citation: Act 38 of 1967
Official identity: Year 1967
Dates: Enacted 1967 · Source version 31 Dec 2014

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Official identity: Year 1967
Dates: Enacted 1967 · Source version 31 Dec 2014

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Purpose and legislative effect

“This section gives the Act its short title: the Sheriffs Act.”

This section gives the Act its short title: the Sheriffs Act. This section defines terms used in the Act. The President may appoint the Sheriff of Malawi, Deputy Sheriffs, Under-Sheriffs, and Assistant Sheriffs. Sheriffs and certain court officers are treated as officers of the court when carrying out duties connected to a process, and they and people acting under them are treated as persons employed in the public service for the Penal Code. The Sheriff may delegate duties connected with a process to a police officer or another person, but cannot authorize a police officer for certain civil process seizures and sales without the Commissioner of Police’s prior approval.

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Short title

This section gives the Act its short title: the Sheriffs Act.

Section 1

Disposal of bills of exchange, etc., seized

The sheriff must keep seized bills, notes, bonds, specialties, or similar money securities as security for what the judgment debtor owes, and the judgment creditor may sue in the debtor’s name once payment is due.

Section 13

Judgment creditor to file affidavit

A judgment creditor may file an affidavit with the Registrar within six years of the High Court judgment, or later only with special leave of the High Court.

Section 26

Section 38

The Deeds Registrar, the Registrar, and other persons are protected from liability for acts done or omitted in good faith while exercising, or apparently exercising, powers under this part or under orders made under it.

Section 38

Section 50

This Act does not affect Army Act provisions about executing processes against Malawi Army officers, soldiers, or their property.

Section 50

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Source record from malawilii.org · Enacted 1967 · Source version 31 Dec 2014

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Showing 50 of 50 provisions

Provision 46Short titleInterpretationOffence

Part I

Preliminary

§ 1Short titleShort title

This section gives the Act its short title: the Sheriffs Act.

1. Short title This Act may be cited as the Sheriffs Act.

Section 1Verify source

§ 2InterpretationInterpretation

This section defines terms used in the Act.

2. Interpretation In this Act, unless the context otherwise requires— " court " means the High Court and a subordinate court ; " judgment debtor " means a person liable under a judgment; " process " means a formal written authority issued by a court for the enforcement of a judgment and includes a warrant of possession and any warrant or order of arrest, commitment or imprisonment; " Sheriff " includes the Sheriff of Malawi appointed under section 3 (1), any Deputy Sheriff, any Under-Sheriff and any Assistant Sheriff appointed under section 3 (2); [22 of 1988] " subordinate court " bears the meaning ascribed to that term by section 2 of the Courts Act; [Cap. 3:02] " warrant " includes writ. [22 of 1988]

Section 2Verify source

Part II

Appointment of Sheriff and other officers

§ 3Appointment of Sheriff , Deputy Sheriff , Under- Sheriff and Assistant SheriffsProvision

The President may appoint the Sheriff of Malawi, Deputy Sheriffs, Under-Sheriffs, and Assistant Sheriffs.

3. Appointment of Sheriff , Deputy Sheriff , Under- Sheriff and Assistant Sheriffs (1) The President may appoint a person to be Sheriff of Malawi. (2) The President may appoint one or more persons to be Deputy Sheriffs or to be Under-Sheriffs and as many persons as he deems necessary to be Assistant Sheriffs. (3) In the exercise of his powers and in the performance of his duties under this Act, a Deputy Sheriff , an Under- Sheriff and an Assistant Sheriff shall be subject to any general or special directions of the Sheriff . A Deputy Sheriff , an Under- Sheriff and an Assistant Sheriff shall have the same powers and protection as the Sheriff . (4) Unless and until other appointments are made to such offices under this section— (a) the Registrar of the High Court shall be the Sheriff ; and (b) each District Commissioner shall be an Assistant Sheriff . [22 of 1988]

Section 3Verify source

§ 4Sheriff , etc., to be officers of court and they and persons acting under their directions or authority deemed employed in public serviceProvision

Sheriffs and certain court officers are treated as officers of the court when carrying out duties connected to a process, and they and people acting under them are treated as persons employed in the public service for the Penal Code.

4. Sheriff , etc., to be officers of court and they and persons acting under their directions or authority deemed employed in public service (1) The Sheriff , a Deputy Sheriff , an Under- Sheriff and an Assistant Sheriff shall, in the performance of his duties in connection with any process , be an officer of the court by which such process was issued. (2) The Sheriff , a Deputy Sheriff , an Under- Sheriff , an Assistant Sheriff and any person acting under the directions or authority of any of them shall for the purposes of the Penal Code be deemed to be persons employed in the public service. [Cap. 7:01] [22 of 1988]

Section 4Verify source

§ 5Delegation of dutiesProvision

The Sheriff may delegate duties connected with a process to a police officer or another person, but cannot authorize a police officer for certain civil process seizures and sales without the Commissioner of Police’s prior approval.

5. Delegation of duties Every duty of the Sheriff in connexion with any process may be performed by such police officer or other person as may be authorized in that behalf by the Sheriff and every such officer or person who is in possession of such process shall be presumed to be so authorized, and shall, for all purposes connected therewith, be an officer of the court by which such process was issued: Provided however that without the prior approval of the Commissioner of Police the Sheriff shall not authorize a police officer to perform any duty under a civil process involving the seizure and sale of any moveable property. Part III – Enforcement of judgments and orders against moveable property and committals, etc.

Section 5Verify source

§ 6Execution of judgments or orders for sum of moneyProvision

A court may enforce payment of a money judgment by issuing a warrant for seizure and sale of the debtor’s property, and the Sheriff may seize and sell the debtor’s moveable property in Malawi.

6. Execution of judgments or orders for sum of money (1) Any sum of money payable under a judgment of a court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by seizure and sale of the moveable and immoveable property of the judgment debtor in accordance with this Act. (2) The court on the application in the prescribed manner of the judgment creditor shall cause to be issued a warrant of seizure and sale whereby the Sheriff shall be empowered to seize and sell the moveable property of the judgment debtor, wherever it may be found in Malawi, to enforce payment of the amount due under the judgment and of the costs of the execution. (3) The precise time of the making of an application to the court for the issue of a warrant shall be entered by it in the book prescribed for the purpose and on the warrant , and when more than one such warrant is issued they shall be executed in the order of the times so entered.

Section 6Verify source

§ 7Execution of orders for payment by instalmentsProvision

A warrant of execution for a money judgment paid by instalments cannot be issued until an instalment is defaulted.

7. Execution of orders for payment by instalments (1) Where a court has made an order for payment of any sum of money by instalments, no warrant of execution for the enforcement of the judgment shall be issued until after the default in payment of some instalment according to the order. (2) On any such default, execution or successive executions may issue for the whole of the said sum of money and costs then remaining unpaid, or for such part thereof as the court may order, either at the time of making the original order or at any subsequent time.

Section 7Verify source

§ 8Execution to be superseded on paymentProvision

The court must record the amounts and fees on every warrant of seizure and sale, and if the judgment debtor pays the required amount before the property is actually sold, the execution is superseded.

8. Execution to be superseded on payment (1) In or upon every warrant of seizure and sale of the property of any person, the court shall cause to be inserted or endorsed the sum of money and costs adjudged, and the fees for the execution of the warrant . (2) If the judgment debtor , before the actual sale of the property, pays or causes to be paid or tendered to the court from which the warrant issued, or to the Sheriff holding the warrant , the sum of money and costs inserted or endorsed as aforesaid, or such part thereof as the judgment creditor agrees to accept in full satisfaction, together with the fees inserted or endorsed as aforesaid, the execution shall be superseded, and the property of the judgment debtor shall be discharged and set at liberty.

Section 8Verify source

§ 9Power to suspend executionProvision

The court may stay execution warrants if the judgment debtor applies and proves the listed conditions.

9. Power to suspend execution If at any time upon an inquiry made on the application of the judgment debtor , wherein the onus of proof shall be upon him, it appears to the satisfaction of the court that the judgment debtor has made a full surrender and disclosure of his property in the prescribed manner, and that he is unable because of unavoidable misfortune to satisfy the judgment, and that he has not been guilty of any misconduct cognisable by the court , and that his property ought to be released from attachment, the court may, in its discretion, stay any warrant of execution issued in the proceedings for such time and upon such terms as the court thinks it, and so from time to time until it appears that the cause of inability has ceased.

Section 9Verify source

§ 10Execution of warrants of possessionProvision

When executing a warrant to give possession of premises, movable property does not have to be removed from those premises.

10. Execution of warrants of possession For the purpose of executing a warrant to give possession of any premises, it shall not be necessary to remove any movable property from those premises.

Section 10Verify source

§ 11Property which may be seizedProvision

A Sheriff executing a court-issued warrant of execution may seize a person’s movable property, but some items and values are protected.

11. Property which may be seized (1) The Sheriff executing any warrant of execution issued from a court against the movable property of any person may by virtue thereof seize— (a) any of the movable property of that person, except the wearing apparel and bedding to the value of fifteen pounds of that person or his family, the tools and implements of his trade, to the value of ten pounds, and the food of that person or his family to the value of ten pounds, which shall to that extent be protected from seizure; and (b) any money, bank notes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to that person. (2) The Sheriff shall become the special owner of movable property upon its being seized by him under this Act.

Section 11Verify source

§ 12Section 12Provision

Property seized under a court process must be kept in one of three ways until sale: deposited by the Sheriff, left with a fit person approved by the Sheriff, or safeguarded as the Sheriff directs.

12. Custody of property seized Movable property seized in execution under process of a court shall until the sale thereof— (a) be deposited by the Sheriff in some fit place; or (b) remain in the custody of a fit person approved by the Sheriff ; or (c) be safeguarded in such other manner as the Sheriff directs.

Section 12Verify source

§ 13Disposal of bills of exchange, etc., seizedProvision

13. Disposal of bills of exchange, etc., seized The sheriff shall hold any bills of exchange, promissory notes, bonds, specialties or other securities for money seized in execution under process of a court as security for the amount due by the judgment debtor for the benefit of the judgment creditor, and the judgment creditor may sue in the name of the judgment debtor, or in the name of any person in whose name the judgment debtor might have sued, for the recovery of the sum secured or made payable thereby, when the time of payment thereof arrives.

Section 13Verify source

§ 14Penalty for obstructing executionOffence

A person who rescues seized property or otherwise obstructs court execution may be fined £100, and the sheriff may arrest them without a warrant and bring them before the court.

14. Penalty for obstructing execution If any person rescues or attempts to rescue any property seized in execution under process of a court or in any other way resists or obstructs the execution of any process for the enforcement of a judgment of a court , he shall be liable to a fine of £100, and the sheriff may take him into custody with or without warrant , and bring him before the court .

Section 14Verify source

§ 15Period to elapse before saleProvision

Seized movable property generally cannot be sold until at least 10 days after seizure, unless it is perishable or the owner asks in writing.

15. Period to elapse before sale (1) No movable property seized in execution under process of a court shall be sold for the purpose of satisfying the warrant of execution until the expiration of a period of at least ten days next following the day on which the property has been so seized unless— (a) the property is of a perishable nature; or (b) the person whose property has been seized so requests in writing: Provided that— (a) the Sheriff may, if he is unable from want of time to complete the sale, adjourn the same for a period of not more than three days, and so on as often as may be necessary; (b) the court may, if it thinks it, direct that the sale shall be postponed for any time not exceeding twenty-eight days after the seizure. (2) Subject to any directions of the court , movable property seized shall be set up for sale at such place as the Sheriff shall consider appropriate. Every such sale shall take place between the hours of seven o'clock in the morning and eight o'clock in the evening, and everything set up for sale shall be knocked down to the highest bidder for ready money. (3) Notice of the day and hour of sale of any property seized shall be published four days at least before the day of such sale, by being posted upon the door of the court house nearest the place in which the seizure is made and where the sale is to take place at some other place, then at that other place also, and if the court so directs in a newspaper published in Malawi.

Section 15Verify source

§ 16Sales under execution to be published unless otherwise orderedProvision

Sales of property under a warrant over twenty pounds must be by public auction and publicly advertised, unless the issuing court orders otherwise.

16. Sales under execution to be published unless otherwise ordered (1) Where any property is to be sold under a warrant for a sum exceeding twenty pounds, including proper incidental expenses, the sale shall, unless the court from which the warrant issued otherwise orders, be made by public auction, and shall be publicly advertised by the Sheriff on the day of sale and the three next preceding days. (2) Where any property is seized in execution and the court has notice of another execution or other executions, the court shall not consider an application for leave to sell privately until the prescribed notice has been given to the other execution creditor or creditors, who may appear before the court and be heard on the application. (3) If a person who holds a valid auctioneer's licence under the Businesses Licensing Act sells by public auction any movable property attached on the instructions of the Sheriff , the Sheriff may pay such person his charges for the sale and such payment shall be a first charge on the proceeds of the sale. [Cap. 46:01]

Section 16Verify source

§ 17Delivery of movable property in possession of judgment debtorProvision

If sold property is movable property in the judgment debtor’s possession or immediate possession, and it has been actually seized, it must be delivered to the purchaser.

17. Delivery of movable property in possession of judgment debtor Where the property sold shall consist 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.

Section 17Verify source

§ 18Section 18Provision

If more than one court issues warrants against a person’s property, the proceeds of the seized property are allocated by the order in which applications for the warrants were made, subject to section 43 of the Bankruptcy Act.

18. Priority of warrants When warrants against the property of any person have been issued from more than one court , the right to the proceeds of the property seized shall, subject to section 43 of the Bankruptcy Act, be determined according to the order of priority of the respective times of application to the courts for the issue of the warrants. [Cap. 11:01]

Section 18Verify source

§ 19Sales, the title obtained thereat and prohibition of certain purchasesProvision

A buyer of seized property gets good title if no claim was made, but the Sheriff, police officers, and people acting under the Sheriff’s directions must not buy that property at the sale.

19. Sales, the title obtained thereat and prohibition of certain purchases (1) Where any movable property in the possession of a judgment debtor at the time of seizure by the Sheriff is sold by the Sheriff without any claim having been made to the same, the purchaser of the property so sold shall have a good title to the property so sold and no person shall be entitled to recover against the Sheriff or anyone lawfully acting under his authority except as provided by the Bankruptcy Act for any sale of such property or for paying over the proceeds thereof unless it is proved that the person from whom recovery is sought had notice or might by making reasonable inquiry have ascertained that the property was not the property of the judgment debtor : Provided that nothing in this section contained shall affect the right of any claimant who may prove that at the time of the sale he had a title to any property so seized and sold to any remedy to which he may be entitled against any person other than such purchaser, Sheriff or person lawfully acting under the authority of the Sheriff . (2) Neither the Sheriff nor any police officer or other person acting under the directions, authority or instructions of any Sheriff in connection with the seizure or sale of any property seized under any process shall himself, or by any other person on his behalf, purchase such property at such sale. [Cap. 11:01]

Section 19Verify source

§ 20Claims to property seized and interpleader by SheriffProvision

A person claiming property seized in execution must first give written notice to the Sheriff; the Sheriff must notify others, hold the property for 14 days, and may deliver it to the claimant if there is no dispute.

20. Claims to property seized and interpleader by Sheriff (1) If a person (hereinafter in this section referred to as the claimant) claims any movable property seized in execution under any process , or the proceeds or value thereof, he shall first give notice in writing thereof to the Sheriff in such form, if any, as may be prescribed. The Sheriff shall thereupon serve copies of such notice in the manner prescribed for the service of any document of the court out of which the process issued upon the execution creditor and upon any other person he considers to be interested in the property. (2) The Sheriff shall hold the property claimed for 14 days from the date upon which the last person was served with a copy of the claim under subsection (1) and if such claim is not disputed by any of the persons upon whom copies of the claimant's notice have been so served within such 14 days the Sheriff may deliver the property in question to the claimant. (3) If the claimant's claim is disputed, the person disputing it shall give notice in writing in such form, if any, as may be prescribed to the Sheriff , who shall forthwith apply to the court from which the process was issued and such court shall issue a summons calling before the court the party at whose instance the process issued and the claimant. (4) Upon the issue of the summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the warrant shall be stayed. (5) On the hearing of the summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the Sheriff upon any claim to damages arising or capable of arising out of the execution of the warrant by the Sheriff , and shall make such order in respect of any such claim and the costs of the proceedings as it thinks it.

Section 20Verify source

§ 21Claims for rent where property seized in executionProvision

A landlord may claim rent arrears after property is seized, and the sheriff must distrain for that rent but cannot sell the seized property for five days after the distress unless an exception applies.

21. Claims for rent where property seized in execution (1) The landlord of premises in which any property is seized may claim the rent of the premises in arrear at the date of the seizure, at any time within five days next following that date, or before the removal of the property, by delivering to the Sheriff making the seizure a claim in writing, signed by himself or his agent, stating— (a) the amount of the rent claimed to be in arrear; and (b) the period in respect of which the rent is due. (2) Where such a claim is made, the Sheriff making the seizure shall in addition thereto distrain for the rent so claimed and the cost of the distress, and shall not within five days next after the distress, sell any part of the property seized, unless— (a) the property is of a perishable nature; or (b) the person whose property has been seized so requests in writing. (3) The Sheriff shall afterwards sell under the execution and distress such of the property as will satisfy— (a) first, the costs of and incidental to the sale; (b) next, the claim of the landlord not exceeding— (i) in a case where the tenement is let by the week, four weeks' rent; (ii) in a case where the tenement is let for any other term less than a year, the rent of two terms of payment; (iii) in any other case, one year's rent; and (c) lastly, the amount for which the warrant of execution issued. (4) The fees of the court and Sheriff for keeping possession and sale under any such distress shall be the same as would have been payable if the distress had been an execution of the court , and no other fees shall be demanded or taken in respect thereof.

Section 21Verify source

§ 22Surplus after sale, residue of property, etcProvision

A Sheriff must return any surplus from a sale under this Act, and any residue of seized property, to the judgment debtor.

22. Surplus after sale, residue of property, etc. Any surplus of a sale by a Sheriff under this Act, and any residue of property seized shall be returned to the judgment debtor.

Section 22Verify source

§ 23Property subject to lienProvision

When sold movable property is subject to a lien or someone else’s immediate-possession right, the sheriff should, as far as practicable, give notice to the person in possession not to hand it over to anyone except the purchaser.

23. Property subject to lien Where the property sold shall consist 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 sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.

Section 23Verify source

§ 24Issue and execution of orders of committalProvision

When a court issues a committal order or warrant in a civil proceeding, the Sheriff is empowered to take the person to prison and deliver them to the prison officer in charge. That officer must receive and keep the person until lawful discharge.

24. Issue and execution of orders of committal (1) Whenever any order or warrant for the committal of any person to prison is made or issued by a court , in any civil proceeding, whether in pursuance of this or any other written law or of rules of court made under this Act, the order or warrant shall be directed to the Sheriff , who shall thereby be empowered to take the body of the person against whom the order is made or warrant issued, and deliver him to the officer in charge of the prison mentioned in the order or warrant . (2) The officer in charge of the prison mentioned in any such order or warrant shall be bound to receive and keep the person therein mentioned until he is lawfully discharged.

Section 24Verify source

Part IV

Enforcement of judgments against private land not registered in the Lands Register

§ 25Application of PartProvision

This Part applies to enforcement of judgments against private land, except land registered under the Registered Land Act.

25. Application of Part This Part shall apply to the enforcement of judgments against private land other than land registered in accordance with the Registered Land Act. Such enforcement shall be effected in the manner provided for in this part and not otherwise. [Cap. 58:01]

Section 25Verify source

§ 26Judgment creditor to file affidavitProvision

A judgment creditor may file an affidavit with the Registrar within six years of the High Court judgment, or later only with special leave of the High Court.

26. Judgment creditor to file affidavit (1) Where any judgment shall be entered in the High Court it shall be lawful for the judgment creditor at any time within six years of the date of such judgment (or after the expiration of six years with special leave of the High Court) to file with the Registrar an affidavit containing the following averments— (a) the name or title of the cause or matter; (b) the date of judgment; (c) that full execution has been levied against the movable property of the debtor; (d) full particulars of the amount of the debt and interest with which the lands are sought to be charged; (e) the full name, address and description of the debtor; (f) that the debtor is seized or possessed of private land in Malawi other than land registered in accordance with the Registered Land Act, or that he has a disposing power capable of uncontrolled exercise in his own favour over such lands; [Cap. 58:01] (g) a description of such lands sufficient for their proper identification, and reference to the dates and deed numbers under which the title deeds to the said lands are registered in the Deeds Registry office. (2) An affidavit filed under this section shall be chargeable with the stamp duty chargeable upon a mortgage of lands for the same sum as that specified in the affidavit under subsection (1)(d).

Section 26Verify source

§ 27Memorandum of approval by RegistrarProvision

When an affidavit is filed under section 26, the Registrar must examine it and, if it is regular and complete under section 26, endorse a memorandum of approval.

27. Memorandum of approval by Registrar Upon the filing of an affidavit under section 26 , the Registrar shall examine the affidavit, and if the same be regular and contain all that is required by section 26 he shall endorse a memorandum of approval thereon.

Section 27Verify source

§ 28Registration in Deeds Registry OfficeProvision

A judgment creditor who has sworn and filed an affidavit may register it in the Deeds Registry Office by giving the Deeds Registrar an authenticated office copy.

28. Registration in Deeds Registry Office It shall then be lawful for the judgment creditor who has sworn and filed such affidavit to register the same in the Deeds Registry Office by presenting to the Deeds Registrar an office copy of such affidavit authenticated by the Registrar, and such copy shall be registered under and be subject to the Deeds Registration Act. [Cap. 58:02]

Section 28Verify source

§ 29Effect of registrationProvision

Registering the affidavit vests the judgment creditor with the judgment debtor’s estate and interest in the specified land, but subject to other persons’ equities and the debtor’s equity of redemption.

29. Effect of registration The registration of any such affidavit as aforesaid shall operate to vest in the judgment creditor registering such affidavit all the judgment debtor 's estate and interest in the lands specified in such affidavit, subject to all such equities as may belong to other persons and subject to the judgment debtor 's equity of redemption.

Section 29Verify source

§ 30Execution of judgments of subordinate courts against landProvision

A judge may order a subordinate court judgment over land to be removed and entered as a High Court judgment, if a judgment creditor applies on notice to the judgment debtor.

30. Execution of judgments of subordinate courts against land No execution against land shall issue direct upon a judgment obtained in a subordinate court , but on the application of a judgment creditor on notice to the judgment debtor a judge shall have power to order that such subordinate court judgment be removed and entered as a High Court judgment, whereupon, for the purposes of this Part, such judgment shall forthwith be deemed to be a judgment of the High Court.

Section 30Verify source

§ 31Section 31Provision

When the Registrar has entered satisfaction of a judgment and the certificate is produced, the Deeds Registrar must record and endorse a memorandum of satisfaction; the land is then released from the charge and the affidavit is expunged.

31. Satisfaction of judgment Whenever satisfaction of a judgment, in respect of which an affidavit has been registered in the Deeds Registry Office, has been entered up by the Registrar, upon production of the Registrar's certificate of satisfaction the Deeds Registrar shall cause a memorandum of satisfaction to be made against the entry of such affidavit in the Deeds Register and such memorandum of satisfaction shall also be endorsed on the certified copy affidavit filed in the Deeds Registry Office; whereupon the lands of the judgment debtor shall become freed and discharged from the charge created by such affidavit and such affidavit shall stand expunged.

Section 31Verify source

§ 32Order for saleProvision

A judgment creditor may ask the High Court to order sale of the judgment debtor’s interest in land after six months, if the registered affidavit exists and the judgment is still unpaid.

32. Order for sale Where an affidavit has been registered against the lands of a judgment debtor as aforesaid and provided the judgment in respect of which such affidavit has been registered remains unsatisfied, then the judgment creditor, at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor 's interest in so much of the lands specified in the affidavit as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.

Section 32Verify source

§ 33Section 33Provision

An application must be made by summons with 14 days' notice to the judgment debtor and any other interested parties in the land.

33. Notice of application Such application shall be by summons on fourteen days' notice to the judgment debtor and to all other parties who appear to be interested in the lands.

Section 33Verify source

§ 34Section 34Provision

The High Court may order inquiries about the debtor’s interest and title when hearing the summons, and any sale order must be carried out as the High Court directs.

34. Powers of High Court in regard to sale On the hearing of the summons the High Court may direct all such inquiries to be made as to the nature of the debtor's interest and title (or otherwise) as shall appear proper, and, upon any order for sale being made, such sale shall be carried out in all respects in accordance with the directions of the High Court. All applications relating to the sale, subsequent to an order for sale, shall be made to a judge in chambers or otherwise as the judge shall direct.

Section 34Verify source

§ 35Application for stayProvision

A person with an interest in land ordered for sale may apply to the High Court to stop the sale.

35. Application for stay Any person who claims to be interested in any lands for the sale of which an order has been made may apply to the High Court to stay the sale and the High Court may, after hearing all necessary parties, give such directions and make such order as to the High Court shall appear proper and just.

Section 35Verify source

§ 36Land to be sold by public auctionProvision

Sales of land made to satisfy a judgment must be by public auction, unless the High Court directs otherwise for special reasons.

36. Land to be sold by public auction Every sale of lands in satisfaction of a judgment shall be made by public auction unless the High Court for special reasons shall otherwise direct.

Section 36Verify source

§ 37Movable property to be first proceeded againstProvision

A judgment creditor generally cannot register an affidavit against a debtor’s land unless the High Court gives express leave and the creditor has first tried execution against the debtor’s movable property, or there is no movable property.

37. Movable property to be first proceeded against No judgment creditor shall, except by express leave of the High Court, register an affidavit under this Part against the lands of his judgment debtor until he has first endeavoured to recover the amount of his judgment debt by warrant of execution against the movable property of the judgment debtor and such execution has failed by reason of the insufficiency of the movable property seized to discharge the sum due or unless it appears that the judgment debtor has no movable property in his possession.

Section 37Verify source

§ 38Section 38Provision

38. Protection of officers Neither the Deeds Registrar, nor the Registrar, nor any other person shall be liable to any action, suit or proceeding for or in respect of any act or matter done in good faith or omitted to be done in the exercise, or supposed exercise, of the powers conferred by this part or in pursuance of any order made under it.

Section 38Verify source

§ 39Appeal from Deeds Registrar or RegistrarProvision

A person aggrieved by a decision or other act or omission of the Deeds Registrar or Registrar under this Part may appeal to a judge in chambers.

39. Appeal from Deeds Registrar or Registrar Any person aggrieved by any decision of, or anything done or omitted by, the Deeds Registrar or the Registrar under this Part may appeal to a judge in chambers, and such appeal may be disposed of without formal notice of appeal unless the judge shall otherwise direct.

Section 39Verify source

Part V

Enforcement of judgments against land registered in the Lands Register

§ 40Application of PartProvision

This Part applies only to enforcing judgments against land registered in the Lands Register under the Registered Land Act, and enforcement must follow the procedures in this Part.

40. Application of Part This Part shall apply to the enforcement of judgments against land registered in the Lands Register under the Registered Land Act, and no other land. Such enforcement shall be effected in the manner provided for in this Part and not otherwise. [Cap. 58:01]

Section 40Verify source

§ 41Inhibition order against registered land, etcProvision

A judgment creditor may apply to the High Court for an order stopping registration of dealings with a debtor’s registered land interests, usually within six years of judgment or later with special leave.

41. Inhibition order against registered land, etc. (1) Where any judgment shall be entered in the High Court it shall be lawful for the judgment creditor at any time within six years of the date of such judgment (or after the expiration of six years with special leave of the High Court) to apply to the High Court for an order upon such terms as appear to such court to be just under section 123 of the Registered Land Act, inhibiting the registration of any dealing with any land, lease or charge or with any interest in such land, lease or charge registered under the Registered Land Act, of which the judgment debtor is registered as proprietor. [Cap. 58:01] (2) An order under section 123 of the Registered Land Act, may be made notwithstanding that full execution has not been levied against the judgment debtor 's movable property.

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§ 42Order for sale of registered land, etcProvision

A judgment creditor may apply to the High Court for an order to sell the judgment debtor’s interest in specified registered land, lease, or charge, but only after registration, unsatisfied judgment, execution against movable property, and six months from registration.

42. Order for sale of registered land, etc. Where a copy of an order under section 123 of the Registered Land Act has been registered in the Land Register and provided that the judgment in respect of which such order has been registered remains unsatisfied, full execution having been levied against any movable property of the judgment debtor , then the judgment creditor at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor 's interest in so much of the land, lease or charge specified in such order as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.

Section 42Verify source

§ 43Section 43Provision

Sections 33, 34, 35 and 36 apply, with necessary modifications, to sales of any interest in land, lease, or charge under this Part.

43. Application of sections 33 , 34 , 35 and 36 to sales, etc., under this Part Sections 33 , 34 , 35 and 36 shall, with any necessary modifications, apply to the sale of any interest in any land, lease or charge under this Part as they apply to a sale of land under Part IV.

Section 43Verify source

Part VI

Miscellaneous

§ 44Indemnity of Sheriff , etcProvision

The Sheriff, Under-Sheriff, Assistant Sheriff, and authorized helpers are protected from being sued for properly carrying out process, and the Sheriff is also protected from suits based only on certain irregularities or on acts or omissions caused by disobedience to the Sheriff’s instructions.

44. Indemnity of Sheriff , etc. (1) The Sheriff , Under- Sheriff , an Assistant Sheriff and a person duly authorized to carry out any duty of any of them in connection with any process shall not be liable to be sued for the proper exercise in manner authorized by law of any process which he is by this Act bound to execute nor shall he be liable by reason only of any want or irregularity in any proceedings in which such process was issued or in the form of such process . (2) The Sheriff shall not be liable to be sued for any act or omission of any police officer or other person in the service of any document or the execution of any process which shall have been done, or omitted to have been done, or which may have occurred either through disobedience to or neglect of the orders or instructions given by the Sheriff . (3) In the case of the execution of any process , all steps which may lawfully be taken therein shall be taken on the demand of the party who issued such execution, and such party shall be liable for any damage and costs arising from any irregular or illegal proceeding taken at his instance.

Section 44Verify source

§ 45Section 45Provision

The Sheriff may appear personally or through a legal practitioner in civil proceedings. A court cannot order costs against the Sheriff unless it finds bad faith by the Sheriff.

45. Appearance by Sheriff and costs against Sheriff In any civil proceedings before a court the Sheriff may appear in person or may be represented by a legal practitioner. In no proceedings shall a court order all or any part of the costs thereof to be paid by the Sheriff unless it considers that the claim involved arose, or was resisted, as the case may be, by reason of bad faith on the part of the Sheriff .

Section 45Verify source

§ 46Sheriff 's powers of entry, search, etcProvision

The Sheriff may enter buildings to execute process and may use reasonable force in specified situations, but has limits for certain dwelling-houses and warrant executions.

46. Sheriff 's powers of entry, search, etc. (1) In order to execute any process the Sheriff may enter any dwelling-house or other building by means of— (a) an open door or an open window; (b) an open door or an open window which he further opens; or (c) a door or window which he opens by any usual means including the turning of a key or handle, the lifting of a latch or the drawing of a bolt: Provided however that— (i) for the purpose of executing a warrant for the arrest of any person or for the seizure of any property the Sheriff shall not so open a door or window of any dwelling-house of any person other than the person to be arrested or the judgment debtor whose property is to be seized unless he believes on reasonable grounds such person to be arrested or property is within the dwelling-house; (ii) for the purpose of executing a warrant for the arrest of any person or for the seizure of any property the Sheriff may, if so authorized by an order of the court which issued such warrant , use force to open a door or window of any building other than a dwelling-house or building within the curtilage of a dwelling-house of the person to be arrested or the judgment debtor whose property is to be seized. (2) Once he has gained lawful entry to any building the Sheriff may for the purpose of executing any process — (a) without prior demand, use any reasonable force and may break open any inner door, cupboard, box, trunk or other container; (b) if thereafter forcibly expelled, without prior demand, use any reasonable force to gain re-entry; and (c) break open any outer door to enable any property seized to be taken away if there is no other means of opening the door or if a demand to open it is refused by the judgment debtor or the person whose building it is. (3) In this section, " Sheriff " includes any person authorized by him.

Section 46Verify source

§ 47RulesProvision

The Chief Justice may make rules about court forms, fees, poundages, allowances, and other steps for carrying out the Act.

47. Rules (1) The Chief Justice may make rules— (a) prescribing the forms to be used for the purposes of this Act; (b) prescribing the fees, poundages and allowances which the Sheriff may demand, take and receive; (c) generally for the better carrying out of the purposes of this Act. (2) Such rules may require the judgment creditor— (a) to make deposits in court to cover the anticipated expenses of attempted execution; (b) to accompany the Sheriff and point out the debtor's property.

Section 47Verify source

§ 48Section 48Commencement

Existing sheriff forms, fees, poundages, and allowances keep applying until changed by rules under section 47.

48. Saving of existing forms, fees, etc. All forms prescribed for use in connection with the execution of judgments by a Sheriff , and all fees, poundages and allowances payable to him under any written law in force immediately prior to the commencement of this Act shall, until amended or varied by rules made under section 47 continue to be used or payable or allowable as if the same had been prescribed or fixed under rules made under section 47 .

Section 48Verify source

§ 49Section 49Provision

This section says unfinished process executions are not invalidated by the Act and may be continued and completed under the prior law, or under the Act if the issuing court directs.

49. Partly completed executions Nothing in this Act contained shall invalidate anything done in connection with the execution of any process which has not been completed at the time of the coming into operation of this Act and such execution may be continued and completed in accordance with the law in force immediately prior to such coming into operation or, if the court which issued such process shall so direct in accordance with this Act.

Section 49Verify source

§ 50Section 50Provision

This Act does not affect Army Act provisions about executing processes against Malawi Army officers, soldiers, or their property.

50. Saving Nothing contained in this Act shall in any way affect any of the provisions of the Army Act relating to the execution of processes against officers or soldiers of the Malawi Army or their property. [Cap. 12:01]

Section 50Verify source

Legislative relationships

5 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

3 instruments

Army Act
Section 50
Bankruptcy Act
Section 18
Courts Act
Section 2

N–S

2 instruments

Penal Code
Section 4
Registered Land Act
Sections 41, 42

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31 Dec 2014 · currentEnglish

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