Jurisdiction exists for execution of judgments if ownership of goods is proven; wrongful seizure leads to actionable trespass.

A) Introduction

[1] This is my grounds of judgment in respect of the Judgment Creditor's (JC) application for leave to enter the Judgment Debtor's (JD) house to execute the Writ of Seize and Sale (WSS) outside office hours by using reasonable force.

B) Backgrounds Facts

[2] On 26 July 2022, JC applied to execute the WSS. The Bailiff had fixed the execution date on 30 August 2022 (First Execution). Summary of the Bailiff Report at encl 12 had shown that on the even date, the Bailiff and the JC's representative went to the JD's house to execute the WSS. However, the house was unoccupied. Both the Bailiff and the JC's representative asked the neighbours about the whereabouts of the Defendant but the whereabouts of the JD was unknown to the neighbours.

[3] The JC then applied for a second execution and the Bailiff fixed the second execution date on 27 September 2022 (second execution).

[4] The encore of the Bailiff's Report at encl 15 illustrates that when the Bailiff and the JC's representative went to the JD's house for the second execution, a woman who introduced herself as the JD's wife informed that:

(a) JD had bought a house in Kuala Lumpur and resided in Kuala Lumpur;

(b) JD rarely go back to the said execution address or house;

(c) The said execution address or house is her house;

(d) JD had applied for assistance from the Credit Counselling and Debt Management Agency or Agensi Kaunselling dan Pengurusan Kredit' (AKPK);

(e) JD's wife had given JD's handphone number to JC's representative to enable JC to conduct further inquiries.

[5] On 6 October 2022, the JC filed encl 16 for the following reliefs:

(a) Kebenaran diberikan kepada Belif Mahkamah ini untuk menjalankan Writ Pelaksanaan terhadap Penghutang Pelaksanaan di luar waktu pejabat dan memasuki premis Penghutang Pelaksanaan di No B12, Rumah Murah Lorong Permai 7, Chamang Baru, 28700 Bentong, Pahang dengan menggunakan kekerasan yang wajar dan berpatutan untuk menjalankan Writ Pelaksanaan dalam tindakan ini;

(b) Kos permohonan ini disenaraikan sebagai kos mengikut kausa; dan

(c) Relif atau perintah yang lain difikirkan perlu.

C) Findings

i. Whether This Court Has The Jurisdiction To Hear Enclosure 16

[6] Orders 45, 46 and 47 of the Rules of 2012 envisage the methods or procedures for the enforcement of the judgments and orders of the Court by way of a writ of seizure and sale.

[7] In adjacent to the above, the power of the subordinate courts ie, the Sessions Court and the Magistrate's Court to allow its appropriate officer to break into any house or other enclosed premises, using such force as may be necessary to execute any judgment is derived from s 99A and para 18 of the Third Schedule to the Subordinate Courts Act 1948 ( SCA 1948) which state as follows:

99A. Further powers and jurisdiction of courts

In amplification and not in derogation of the powers conferred by this Act or inherent in any Court, and without prejudice to the generality of any such powers, every Sessions Court and Magistrates' Court shall have the further powers and jurisdiction set out in the Third Schedule.

THIRD SCHEDULE

[ Section 99A ]

ADDITIONAL POWERS OF SESSIONS COURTS AND MAGISTRATES' COURTS

18. Execution

(1) For the purpose of executing any judgment or order or of attaching property before judgment the Court by its appropriate officer may break into any house or other enclosed premises, using such force as may be necessary, and may similarly break into any part thereof or any safe, cupboard, or other container therein.

[8] Hence, relying on the above provisions, this Court has the jurisdiction to grant the relief sought by the JC at encl 16.

ii. Whether