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23 1940

ENFORCEMENT OF COURT ORDERS ACT, 1940

PART I.

Amendment of the Enforcement of Court Orders Act, 1926.

The Principal Act.

1. —In this Part of this Act the expression “the Principal Act” means the Enforcement of Court Orders Act, 1926 (No. 18 of 1926).

Construction of this Part of this Act.

2. —(1) This Part of this Act shall be read as one with Part II of the Principal Act, and accordingly every word and expression to which a particular meaning is given in or by the said Part II for the purposes of the said Part II shall have in this Part of this Act the meaning so given to it.

(2) In this Part of this Act, the expression “instalment order” means an order made under section 17 of the Principal Act, whether such order requires the debt and costs to be paid in one payment or by instalments, and, where such order has been varied under this Part of this Act, includes such order as so varied.

Time within which application for examination order may be made.

3. —An application for an examination order may be made at any time not more than six years after the date of the judgment in relation to which such order is sought.

Duration of instalment orders.

4. —(1) An instalment order made after the passing of this Act shall continue in force until the expiration of six years from the date thereof and no longer.

(2) No instalment which accrues due under an instalment order after such order ceases to be in force shall be payable or recoverable.

(3) Nothing in this section shall be construed as requiring that an instalment order shall provide for payment of the whole of the debt and costs within the period during which such order continues in force.

Variation of instalment orders.

5. —(1) A Justice of the District Court may, if he so thinks proper on the application of the creditor or of the debtor, do in respect of any instalment order (whether made before or after the passing of this Act) whichever of the following things is applicable, that is to say:—

(a) where such instalment order requires the debt and costs to be paid in one payment, vary such order so as to provide (in lieu of such payment in one sum) for payment of the debt and costs by such instalments and at such times as such Justice shall in all the circumstances think reasonable;

(b) where such instalment order requires the debt and costs to be paid by instalments, vary such order in such manner as such Justice may think proper in respect of the number of instalments, the amount of the instalments, or the times at which the instalments are to be paid or all or any two of those matters.

(2) Whenever a Justice of the District Court makes under this section, whether on the application of the creditor or the application of the debtor, an order varying an instalment order, such Justice may, if he so thinks proper, do either or both of the following things, that is to say:—

(a) direct that the costs of the creditor in respect of the application for such variation order shall be part of the costs of the proceedings in the District Court within the meaning of section 17 of the Principal Act;

(b) direct that such variation order shall apply and have effect as from a specified date prior to the date thereof.

(3) Save as provided by the preceding sub-sections of this section, an order under this section shall have effect from the date thereof.

Re-enactment of section 18 of the Principal Act with modifications.

6. Section 18 of the Principal Act is hereby repealed and in lieu thereof it is hereby enacted as follows, that is to say:—

(a) where a debtor is liable, by virtue of an instalment order, to pay a debt and costs either in one payment or by instalments and such debtor fails to make such payment or fails to pay any one or more of such instalments accruing due while such order is in force at the time or times appointed in that behalf by such order, the creditor may, at any time while such order is in force or within twelve months after it has ceased to be in force, apply to a Justice of the District Court for the arrest and imprisonment of such debtor;

(b) on the hearing of an application under the next preceding paragraph of this section, the Justice may if he so thinks proper but subject to the next following paragraph of this section, order the arrest and imprisonment of the debtor for any period not exceeding three months, and thereupon the debtor shall be arrested and imprisoned accordingly;

(c) the Justice shall not order the arrest and imprisonment of the debtor under the next preceding paragraph of this section if the debtor (if he appears) shows, to the satisfaction of such Justice, that his failure to pay was due neither to his wilful refusal nor to his culpable neglect;

(d) on the hearing of an application under paragraph (a) of this section, the Justice, if he so thinks proper, may, in lieu of ordering the arrest and imprisonment of the debtor, treat such application as an application under the next preceding section of this Act for the variation of the said instalment order and thereupon the said next preceding section shall apply as if such application were an application thereunder;

(e) whenever a debtor is arrested and imprisoned by virtue of an order made under this section, he shall be entitled to be released immediately upon payment by him or on his behalf to the District Court Clerk, or to the Governor of the Prison for the District Court Clerk, of the sum of money (to be specified in such order) consisting of the, amount of all instalments of the debt and costs which have accrued before and are unpaid at the date of such order, and such further sum (if any) for the costs of such order as the Justice making such order shall think reasonable;

(f) all moneys paid under this section to the District Court Clerk (whether directly or through the Governor of the Prison) by or on behalf of a debtor shall be paid by the District Court Clerk to the creditor on demand.