Execution Matrix
For Hon. Kuppa, SRM 2024.
Execution of decree is of two process
• Preliminary process; which involves the institution of the suit for the
execution of decree, order.
• Making decision for application of execution.
Sec. 33 of CPC and order XXI provides for execution of decree. The
application for execution of decree must be made to the same court that has
passed the decree or order.
The application for execution is made as per order XXI rule 10 of CPC. The
application for execution must be instituted within 12yrs from when the
decree has passed it as was observed in the case of Zuleia Katunzi and
others vs. Tanzania Harbour Authority Civil Appeal No.123 (2014)
HCT whereby in this case the court referred the time limitation provided in
sec. 39 of CPC and Law of Limitations Act cap 89 R.E 2019.
The CPC provides that the execution period is 12 months and for that there is
no requirement to serve summons to the judgment debtor unless such time
has lapses. This is provided under Order XXI Rule 20 of the Code.
Modes of Execution as per Sec 42 and Order XXI Rule 10(j) of the
CPC
1. Delivery of the property decreed
2. By attachment and sale or by sale without attachment of any property
If the judgment debtor fails to honor a decree, a decree holder may made
application to the court to have the properties belongs to judgment debtor be
attached and auctioned in order to obtain decreed sum of money.
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One cannot attach property that do not belong to judgment debtor as it was
stated authoritatively in the case of Mussa Vs. Mchodo (1984) TLR
pg.348 and the case of Nyanza Distributors Company Ltd vs. Geita
General Store (1997) TLR no 2 .
In case where a judgment debtor has attached a property that not belong to
him, such third party who has interest in such property may file Objection
Proceedings as provided for under Order XXI Rule 57 & 58 of the CPC.
3. Sale of attached property.
Order XXI Rule 24 of CPC
4. Arrest and Detention Order XXI Rule 28 CPC
Where a decree has been passed against judgment debtor, and after the
investigation by the decree holder that the judgment debtor had no valuable
property subject to attachment, he may make an application for judgment
debtor to be arrested and detained in prison. However, before the court has
issued a warrant of arrest, it shall summons the judgment debtor to show
cause as to why he shall not be arrested as provided under sec. 44 and Order
XXI Rule 35(1) of CPC.
The judgment debtor may be detained from 6 weeks to 6 months
imprisonment and after expiry of 6 months and judgment debtor has not paid,
shall be detained again.
Conditions for Arrest and Detention
In Richard Simon and 3 others vs. Yassin I. Maswali Execution No. 50
of 2022 TZCH (Land Division) at pg 4 K.D.Mhina,J cited in Grand
Alliance Ltd vs. Wilfred Lucas Tarimo and four others, Civil
Application No. 187/16 of 2019, the court of Appeal held that “the right
to commit a Judgment Debtor as a Civil Prisoner is provided under sec. 42-47
and rule 28,35 to 49 of Order XXI of CPC. Sec 42 of the code enumerates
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different modes of execution that the decree holder can choose for executing
his decree. However, that the right is subject to some conditions and
limitations” [emphasis provided]
Order XXI Rule 39(2) of the Code set forth conditions and limitations to
consider before committing a Judgment debtor as a civil prisoner, and the
decree holder has to prove with evidence that being the judgment debtor
has a means and ability to pay and there must be a refusal to pay on the part
of the judgment debtor.
In the case of Richard (supra) at pg 6 K.D.Mhina, J submitted that in our
laws, arrest and detention is not executed as matter of course and hence the
case of Euafrican Bank (T) Ltd vs. Ami Travel Bureau Ltd and Another,
commercial case no.8 of 2006, High Court Commercial Division, on pg
8 where it held that;
“so, in short, an order for committal to Civil Prison is not issued as a matter of
course. The decree holder has to show that the judgment debtor has means
but failed or refused to pay or did any act with the object of defeating the
execution of the decree. If the decree holder fails to discharge that burden,
the Court has no power to issue that process.”
Though the law does not prohibit the Decree holders from opting for arrest
and detention before exhausting other modes, but as matter of practice, at
least the decree holders have to show that “first instances” modes such as
attachment and sale have failed. This is because arrest and detention are
treated as a “last resort” mode. See also Simon Mwita Miagani and
another vs. Kiribio ltd, Execution case no. 56 of 2020. TZHC and
Joseph Nestory Isaka vs. Flanconia Investment Ltd, Execution no. 4
of 2020. TZCH
5. Appointment of Receiver
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6.other modes like Garnishee proceedings.
The Garnishee proceedings are applicable in Tanzania based on common law
procedure in terms of sec.2 of the Judicature and Application of Laws Act cap.
358 R.E 2019. The procedures are;
• A decree holder files an application seeking the assistance of the Court
to attach the judgment debtor’s debt or movable property in the
possession of another person (garnishee)
• Upon receipt of application, the court has to issue a notice (garnishee
order nisi) to the judgement debtor’s creditor (the garnishee) calling
upon him/her within the period specified in the notice either to pay into
Court the said amount or to appear before the Court in Chambers and
show cause why he should not be ordered to do so.
• The court may order the judgment debtor to be served with a copy of
notice (garnishee order).
• Non-appearance of the garnishee or failure to pay the amount as per
the notice: where the garnishee fails to appear or pay to court the
amount ordered in the notice or garnishee order nisi, the court may
order that garnishee comply with the terms of such notice or pass such
other order as it may deem it fit. Thus, the court will issue a garnishee
order absolute.
• Where the garnishee disputes liability, the court may order that any
issue or question necessary for determining garnishee’s liability be tried
as though it were an issue in a suit: and upon the determination of
such issue, it shall pass such order upon notice as it may think fit.
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NB; execution is not ought to proceed if a) there is an objection
proceeding b) stay of execution and c)the order of the said
execution is overruled.
After the execution order has been passed by the executing court, the court
shall appoint a court broker as an executing officer (court broker) as per order
XXI Rule 15 & 22 of the CPC and the Court brokers and process servers
(appointment, remuneration and Disciplinary) Rules, 2017 (GN. No. 363/2017)
Issuance and service of 14 day’s notice to the judgment debtor to settle the
claim or comply with the order of the court as per rule 21 of GN No.
363/2017.
Executing Officer’s Report:
Executing officer has a duty to execute the warrant, endorse it the way
he/she has executed or reasons for failure to execute and return it to the
court within the time specified.
➢ Unless ordered by the court, the executing officer shall not attach
property with a market value which exceeds the value of the decree
plus the execution expenses permitted under the rules by more than
5%
➢ Where the executing officer fails to execute an order of execution, he
shall notify the court on his failure to execute it after which the court
the court shall, upon application by the decree holder, vacate the order
and issue a fresh one in respect of the same or another property to be
pointed out by the decree holder.
The executing officer has to submit an inventory showing the items attached
and their values and failure to comply with this he will be punished by
cancellation of engagement granted or to such other disciplinary proceedings
as per Rule 24 of GN No. 363/2017.
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Transfer of decree as per sec 34serve summons of CPC.
A decree can be transferred from the executing court to another court. The
application for transfer of decree is done by way of Chamber Summons
supported by an Affidavit as the general application under the CPC is done
and not otherwise.
Remedies of decree
i. Objection proceedings
This is brought by a 3rd party whose property are attached in execution
of decree by formal application (Chamber Summons + Affidavit) as
provided under Order XXI Rules 57 to 62 of the CPC. It is done before
attachment and sale.
ii. Stay of Execution
is a remedy available to the judgment debtor to stop execution of the
decree of the trial court pending an appeal as per Order XXI Rule 24 of the
CPC.
Rules of court brokers
To register execution, court brokers and court executing has to keep record of
execution including particulars, as prescribed in format set out in first
schedule of the rules whereas for the executing court is form no 8, and for
court brokers is form no 9 (as per rule 20)
Notice to judgment debtor, before executing any order judgment debtor has
to be served a notice of not less than 14 working days, as it is set out in form
no 10 of the first schedule. For eviction order also the notice has to be served
not less than 14 days before eviction, unless with the leave of the executing
court no eviction order, demolishing or court decree be executed of landed
property shall be executed in a day other than working days. Unless with the
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leave of the court no warrant of attachment shall be executed between sunset
and daybreak. (as per rule 21)
Compliance of judgment debtor, warrant or order shall cease after the
judgment debtor comply with the order (as per rule 22), court broker will
subjected to a misconduct if he attach property with the market value
exceeding the value of the decree and execution expenses permitted unless
ordered by the court, (as per rule 23)
Submission of inventories, court broker after the attachment has to file
inventories showing items and value of the attachment in order for the parties
to the proceedings to be served too and it has to be during working days,
failure to do so is a misconduct. (as per rule 24)
Deposit of money paid in execution, after the execution is complete then court
broker has to deposit the money paid to the clients account or courts account
during working days, failure to do so it is a misconduct. Also for proclamation
of sale court broker has to obtain a court order and every sale in execution
shall be by public auction. (as per rule 25)
Charges and deposits in cases of attachments and orders for sale, judgment
debtor is the one liable to pay the court broker unless proved that he is
blameworthy meaning that no were to be found, no property to attach then
the decree holder shall pay the charges. In addition an application to issue a
warrant of attachment, order for sale or any other court process issued by the
high court, district court and court of resident court then, magistrate or
registrar may require the party applying to deposit any reasonable sum that
meet the fees for execution or any other court process.
