ACT No. XIV of 2006 AN ACT to to implement various measures relating to judicial proceedings.

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

4th August, 2006

ACT No. XIV of 2006

AN ACT to to implement various measures relating to judicial

proceedings.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

(1) The short title of this Act is the Code of Short title and

Organization and Civil Procedure (Amendment) Act, 2006, and this commencement.

Act shall be read and construed as one with the Code of Organization

and Civil Procedure, hereinafter referred to as "the Code".

(2) This Act shall come into force on such date as the Minister

responsible for justice may by notice in the Gazette appoint, and

different dates may be so appointed for different purposes and for

different provisions of this Act.

The Arrangement of Code shall be amended as follows

Amendment of

arrangement of

Code.

(a)

in Book Second, in Part I, for the words from ''Title

VII'' to Articles ''389-395'' there shall be substituted the

following

''Title VII

Of the Enforcement of Judgments and other

252-395

Executive Titles

General Provisions

252-281

Sub-title I

Of the Warrant of Seizure of Movable Property

282-293

Sub-title II

Of the Warrant of Seizure of Immovable

294-300

Property

Sub-title III

Of the Warrant of Seizure of a Commercial

301-312

Going Concern

Sub-title IV

Of Judicial Sales by Auction

313-357

Sub-title V

Of Court Approved Sales for Aircraft, Ships

358-364

and Vessels

Sub-title VI

Of the Executive Garnishee Order

375-383

Sub-title VII

Of the Warrant of Ejectment or Expulsion from

Immovable Property

Sub-title VIII

Of the Warrant In Factum

385-388

Sub-title IX

Of the Warrant of Executive Detention of

388A-388B

Aircraft

Sub-title X

Of the Warrant of Executive Arrest of Sea

388C-388D

Vessels

Sub-title XI

Of the Warrant In Procinctu

388E

Sub-title XII

Of the Rendering of Accounts and Liquidation

389-395'';

of Fruits

and

(b) in Book Third, for the words from ''Title VI'' to ''Of

the Meditatio Fugae Warrant'' there shall be substituted the

following

''Title VI

Of Precautionary Acts

829-877

General Provisions

829-838B

Sub-title I

Of the Warrant of Description

839-845

Sub-title II

Of the Warrant of Seizure

846-848

Sub-title III

Of the Warrant of Seizure of a Commercial

848A-

Going Concern

848B

Sub-title IV

Of the Garnishee Order

849-854

Sub-title V

Of the Warrant of Detention of Aircraft

855-864

Sub-title VI

Of the Warrant of Arrest of Sea Vessels

865-872C

Sub-title VII

Of the Warrant of Prohibitory Injunction

873-877''.

In Title VII of Part I of Book Second of the Code, the

words ''Sub-title I'', immediately before the words ''General

Provisions'', shall be deleted.

For article 273 of the Code there shall be substituted the Substitution of

article 273 of

following

the Code.

273. The executive titles mentioned in

''Executive

acts.

article 253 may, according to circumstances, be

enforced by any of the following executive acts

(a)

warrant of seizure of movable

property;

(b) warrant

of

seizure

of

immovable property;

(c)

warrant of seizure

of

a

commercial going concern;

(d) judicial sale by auction of

movable or of immovable property or of

rights annexed to immovable property;

(e)

executive garnishee order;

(f)

warrant of ejection or eviction

from immovable property;

(g)

warrant in factum;

(h)

warrant

of

detention

of

aircraft;

(i)

warrant

of

arrest

of

sea

vessels;

(j)

warrant in procinctu.''

Article 274 of the Code shall be amended as follows

Amendment of

article 274 of

the Code.

(a)

in the proviso to subarticle (1) thereof, for the words

''is also to append his own signature'' and ''to obtain beforehand

such authorisation'' there shall be substituted the words ''shall

append his own signature'' and ''to obtain such authorisation''

respectively; and

(b) in subarticle (2) thereof, for the words ''or the

thing due in virtue of the title'' there shall be substituted the

words ''and, or the article due in virtue of the title, and also

such remedies and, or provisions that are being demanded''.

Article 278 of the Code shall be renumbered as article 275 Renumbering

and amendment

of the Code and shall be amended as follows

of article 278 of

the Code.

(a)

in subarticle (1) thereof, for the words from ''The

marshal may,'' to ''break open'' there shall be substituted the

words ''The court executing officer may, in connection with the

execution of any warrant committed to him, after calling in two

witnesses, exercise all such powers as are reasonably required

of him to execute the warrant, which includes the breaking open

of'';

(b) immediately after subarticle (1) thereof there shall

be added the following new proviso

''Provided that in the case of a warrant of detention

of aircraft, the powers of the court executing officer shall

not include the breaking open of any external or internal

aircraft doors or any other damage to the aircraft.'';

(c)

in subarticle (2) thereof, for the words from

''Nevertheless,'' to ''the marshal'' there shall be substituted the

words ''In the case of any warrant for the seizure of any property

of the Government of Malta, the court executing officer''; and

(d) immediately after subarticle (2) there shall be added

the following new subarticle

''(3) The Prime Minister may from time to time by

regulations establish a list of property pertaining to the

State which may not be the subject of an executive or a

precautionary warrant.''.

Article 279 of the Code shall be renumbered as article 276

of the Code.

Article 280 of the Code shall be renumbered as article 277

of the Code and there shall be substituted the following new article

therefor

''Time for

277. (1) Saving the exceptions laid

execution of

down in this Code, no warrant or garnishee

warrants

and orders.

order may be executed other than during such

time as may be prescribed by the Minister

responsible for justice by regulations made

under this article.

(2) Regulations made under this article

may also provide for such cases in which the

execution of a warrant or an order is allowed to

take place other than during the prescribed time,

the method of execution and the statements

which have to be included in the certificate of

service

Provided that, for reasons of urgency

to be confirmed on oath by the applicant, the

court may allow the execution of any warrant or

order other than during the prescribed time.''.

Article 281 of the Code shall be renumbered as article 278 Renumbering

and amendment

of the Code and shall be amended as follows

of article 280 of

the Code.

(a)

in subarticle (1), for the words ''The marshal shall

deliver a copy of the warrant or order'' there shall be substituted

the words ''The court executing officer shall deliver a copy of

the warrant or order at the first available opportunity''; and

(b) in subarticle (2) thereof, for the words ''Unless the

court shall otherwise direct, the marshal'' there shall be

substituted the words ''Unless the court shall otherwise direct, or

unless otherwise prescribed by the Minister responsible for

justice as prescribed in article 277(2), the court executive

officer''.

Article 282 of the Code shall be renumbered as article 279 Renumbering

and amendment

of the Code and shall be amended as follows

of article 282 of

the Code.

(a)

for the words ''The nullity'' there shall be substituted

the words ''Where the basis of nullity is not of a grievous nature,

the nullity''; and

(b) for the word ''marshal'' wherever it appears, there

shall be substituted the words ''court executing officer''.

Article 283 of the Code shall be renumbered as article 280 Renumbering of

article 283 of

of the Code.

the Code.

Article 283A of the Code shall be renumbered as article Renumbering

281 of the Code and there shall be substituted the following new and

of article 283A

of the Code.

article therefor

281. (1) Without prejudice to any other

''How

executive

right under this or any other law, the person

acts may be

impugned.

against whom an executive act has been issued

or any other person who has an interest may

make an application, containing all desired

submissions together with all documents

sustaining such application, to the court issuing

the executive act praying that the executive act

be revoked, either totally or partially, for any

reason valid at law.

(2) The application shall be served on

the opponent who shall, within ten days, file a

reply containing all submissions which such

opposite party may wish to make together with

all documents sustaining the reply which are

within its ability to file

Provided that the court may, in urgent

cases, reduce the period referred to in this

subarticle. In default of such opposition the

court shall accede to the demand.

(3) The court shall decide on the

application after hearing the parties and

receiving such evidence as it may deem fit, if it

so considers, within a period not later than one

month from the filing of the said application.

(4) An appeal from a decree delivered

Appeal

from

under subarticle (3) of this article may be

decree.

entered by application within six days from the

date on which the decree is read out in open

court. The Court of Appeal shall appoint such

appeal for hearing within one month from the

date when the decree is read out in open court,

and the appeal shall be decided within three

months from the date when it has been

appointed for hearing.

(5) The security referred to in article 249

shall not be required in the cases referred to in

the previous subarticle.''.

Articles 284 to 304 of the Code shall be deleted.

Deletion of

articles 284 to

304 of the Code.

Immediately after sub-heading ''Sub-Title I - Of the Addition of new

282 to

Warrant of Seizure of Movable Property'', there shall be added the articles

293 in the Code.

following new articles 282 to 293 in the Code

282. (1) The warrant for the seizure of

''Warrant of

seizure on

movable property shall, besides the particulars

movable

property.

stated in article 274, contain Court orders

about

(a)

(i) the appointment of the

day, place and time for the judicial

sale by auction and the subsequent

seizure and removal thereupon of all

such articles from the place which

has been indicated by the creditor or

from the person of the debtor; or

(ii) the seizure from the

place indicated by the creditor,

including from the person of the

debtor, of any such article which the

debtor may possess or such article

or articles as may be mentioned in

the warrant; and also that after the

execution of the warrant, the court

executing officer shall be ordered to

fix, together with the advocate or

the legal procurator of the creditor,

the day when the judicial sale by

auction is to be held in consultation

with

the

executing

officer

responsible therefor, and such

executing officer shall also fix with

the creditor the date, which shall at

least be seven days prior to the date

of the judicial sale by auction, when

the removal of the articles which the

executing creditor selects to have

removed shall take place;

(b) the execution of the warrant,

if so required, after legal hours or on a

Sunday or public holiday, and if after two

attempts to execute the warrant the court

executing officer fails to effect such

execution, he shall be authorised to force

open the place;

(c)

the transport of the property

seized and to be removed to the official

storage places established by regulations

made by the Minister responsible for

justice, and about the transfer of their

possession from the debtor to the official

consignee appointed in terms of such

regulations;

(d) the taxing and receipt of

payment due to the official consignee by

the creditor for such period during which

the articles seized and to be removed

would be under the care of the official

consignee, so however that such payment

may be divided in proportion to the

periods established by the Registrar

depending on the nature of the articles

seized and to be removed. Such payment

is made subject to the right of regress

against the debtor when such right exists;

(e)

the appointment of experts to

make a valuation of the property seized,

if so required by law, either in special

circumstances which the court may deem

appropriate, or on the demand of any

interested party or of the debtor;

(f)

the appointment of an

auctioneer who shall receive a fee in

terms of the Auctioneers Act, if so

required by law;

(g) an order for the judicial sale

by auction of such articles as are seized

and to be removed on the appointed day

in terms of regulations to be made by the

Minister responsible for justice, without

further service of any notice to the debtor.

(2) The provisions of this Sub-title

shall not apply to sea vessels or other craft

having a length exceeding ten metres, and to

aircraft engaged in commercial air transport,

unless otherwise exempt by the provisions of

this Title.

283.(1) (a)

The court executing officer

Description

of property

shall attach to the said warrant a detailed

seized.

description of the property seized.

(b) The creditor or the debtor or

any interested party may demand the

court executing officer to take any

photograph or filmshot of the detained

articles either by electronic or by any

other means at the expense of the party

making the demand.

(2) If the court executing officer finds

Contents of

certificate in

no movable property, or finds only such

case of

unsuccess-ful

property as is not liable to seizure, he shall

execution.

make a certificate to that effect, stating therein

the nature of the movable property, if any, not

liable to seizure, and he shall attach such

certificate to the warrant.

284. (1) When a warrant of seizure is

Payment of

the amount

being executed, it is only the full amount

due.

claimed by the creditor that may be paid by the

debtor to the court executing officer.

(2) The court executing officer shall

describe in detail the property seized and -

(a)

where the property includes

any merchandise, he shall cause such

merchandise to be weighed, measured or

gauged, as the case may be;

(b) where money or securities for

money, jewellery, or articles of precious

metal are seized, he shall accurately state

the amount or nominal value or weight

thereof and he shall within the shortest

time possible take the same to the registry

and lodge them therein by means of a

schedule;

(c)

where papers are seized, he

shall seal them and deliver them to the

Registrar, and such seals may not be

removed except by the authority of the

court.

285. (1) Seizure may be effected on

Seizure of

papers.

any movable property including

(a)

shares

in

commercial

partnerships;

(b) licences issued by any

competent authority as may be

established by regulations made by the

Minister responsible for justice;

(c)

insurance policies;

(d) credit securities and any

intellectual or industrial property right

Provided that on such property the

warrant shall have effect as from the date of the

service on such authority or such person who

would have issued such movable property. Any

transfer made or burthen incumbent on such

property after that date shall be ipso jure null

as from the date of the service of the certificate

of seizure to such person or authority issuing

same.

(2) Where

in

any

commercial

partnership its statute attributes any right of

preference with regard to the transfer of shares,

the shareholders shall be informed of the date

when such sale is due to take place and they

may exercise the said right during that sale.

(3) When the judicial sale by auction of

an insurance policy is due to take place, notice

shall be given to the insurance company of the

date of such sale.

286. (1) Such property as is removed

Official

consignee.

from the possession of the debtor, in terms of

article 282(1)(c) subject to the provisions of

article 293, shall be transferred forthwith to

be retained in the hands of the official

consignee in the presence of the court

executing officer, and the official consignee

shall receive and hold such property in an

official storage place until such time as that

property is sold or the official consignee is

ordered to do otherwise.

(2) The official consignee shall issue a

receipt, to be signed by him, for such property

as would have been seized and removed from

the possession of the debtor and which he

would have received

Provided that the official consignee

may, with the written consent of the Registrar,

retain such property in any place other than the

official storage place in such circumstances

where, due to the nature or the size of the

articles seized, it would not be feasible to

dispose otherwise.

(3) The Minister responsible for justice

shall appoint a number of official consignees to

safeguard the property seized as from such

time as the property is held in the hands of the

court executing officer to the day when they

are sold

Provided that where the official

consignee is a company or partnership, such

company or partnership is to appoint a person

who shall at all times be personally responsible

to fulfil the obligations of the official

consignee, and to assume joint responsibility

with the company or partnership

Provided further that the Minister

responsible for justice may by regulations

provide for the making of any other such

conditions as he may deem necessary relating

to the appointment of a person as an official

consignee or to be personally responsible in

terms of the first proviso to this subarticle.

(4) The Minister responsible for justice

shall indicate the official storage places where

the seized property is to be stored by official

consignees from the time when the property is

removed by the court executing officer up to

the day when it is sold.

(5) The Minister responsible for justice

may by regulations provide in relation to the

preservation of such property, its release prior

to sale, the procedures connected with the sale

thereof, the responsibility pertaining to the

official consignee for the payment of his fees,

and in relation to any other matter connected

with the preservation, sale, consignment and

release of the property seized.

Persons who

287. An official consignee who is

may not act

appointed under this Title may not act when he

as official

consignees.

is either

(a)

the execution creditor;

(b) the husband or wife of the

debtor or of the creditor;

(c)

the father or mother of the

creditor, his daughter or son, or his

brother or sister, his uncle or aunt, his

father-in-law or mother-in-law or her

husband or his son-in-law or daughter-in-

law;

(d) directly

or

indirectly

employed with the creditor;

(e)

the person who claims to be

the owner of the property seized.

288. At the time of execution of the

Attendance of

the official

warrant of seizure under article 282, the

consignee.

official consignee shall attend together with the

court executing officer to execute the warrant.

The court executing officer may seize and

remove property without informing the

creditor.

Official

289. (1) The official consignee shall

consignee to

be responsible for the proper preservation of

preserve

property

the property entrusted to him and he shall not

seized.

use, nor shall he allow any person to use, such

property unless otherwise ordered by the court

Provided that the debtor may be

allowed to use or retain in possession such

articles of the property seized as the court may

authorise if the court considers that such

articles are normally required by an average

household for decent living to maintain the

human dignity of the debtor and his family.

(2) Where the property seized is of a

perishable nature, the Registrar shall, without

further authorisation, sell the goods seized and

with the profit made from that sale, he shall

proceed according to the provisions of article

284.

290. The official consignee is bound to

The official

consignee to

exercise for the safe keeping of the property

act as a bonus

paterfamilias.

seized, such care as is exercised by a bonus

paterfamilias; if the official consignee fails to

present such property when called upon to do

so, the court shall order him to appear before it

to explain his failure to do so; the official

consignee shall be responsible for damages and

interest and the court, after examining the

circumstances of the case, may issue such

orders as appear to be appropriate, including

the personal arrest of the official consignee for

a period not exceeding three months, to compel

him to present such property. The failure of the

official consignee to present such property

when ordered by the court shall of itself

constitute contempt of court in terms of the

applicable provisions under this Code.

Other

291. The creditors of any person, whose

creditors may

property has been seized, may not, for any

not oppose

execution.

cause whatsoever, make any opposition to the

execution of the warrant or to the sale of the

property

Provided that it shall be lawful for

such creditors to enforce their claim on the

proceeds of the sale of the property seized.

292. (1) If, when executing a warrant

No

identification

of seizure, the court executing officer finds that

is to be made

of property

another warrant has already taken place and

already

that the articles have not been removed, he

seized.

shall likewise execute the warrant again at the

place indicated to him by the creditor.

Identification of the property so seized shall no

longer be permitted. The court executing

officer shall, at the creditor’s expense, inform

the creditors that on their demand other

warrants had been executed by means of the

first warrant.

The warrant

(2) When an official consignee has

may be

already been appointed, and the articles have

executed on

new articles

been removed, no other warrant may be

other than

executed on such articles.

those already

seized.

293. (1) The property mentioned

Property not

subject to

hereunder is not subject to seizure

seizure.

(a)

such clothes for daily wear,

bedding and such utensils and furniture

as are considered reasonably necessary

for the decent living of the debtor and his

family;

(b) personal documents and

books relating to the profession of the

debtor, of his wife or of his children;

(c)

the registers and minute-

books of notaries public;

(d) tools

and

implements

necessary for the instruction in or the

exercise of any science or of any art of

the debtor, of his wife or of his children;

(e)

animals and tools required for

agriculture and any fruit either cut or not

yet separated from the ground;

(f)

aircraft,

exclusively

appropriated to a state service,

including the postal service, but

excluding commercial service;

(g) sea vessels wholly chartered

in the service of the Government of

Malta

(h) sacred vestments and vessels

which are used in a consecrated church,

or belonging to a priest, a religious order

or any member thereof;

(i)

any property of any member

of the Police Force or of the Armed

Forces of Malta being arms, ammunition,

equipment, instruments or clothing used

by him in the discharge of his duties

Provided that any such property as

is mentioned in paragraphs (a) to (g) may be

seized -

(i) if the execution is

demanded in respect of the price of

such property;

(ii) if the execution is

demanded in respect of rent or

ground-rent of the tenement in

which such property is kept;

(iii) if the executive title by

virtue of which the warrant has been

issued specifically condemns the

debtor to effect the return of such

property.

(2) The seizure may be effected of

unseparated movable property belonging to

both debtor and a third party, insofar as no sale

of such property may take place except after

their separation.''.

Immediately after article 293 in Book Second of the Code Addition of new

there shall be added the following new sub-title and the following Sub-title

and

new articles in

new articles 294 to 300

Book Second of

the Code.

''Sub-title II

OF THE WARRANT Of SEIZURE OF IMMOVABLE PROPERTY

Form of

294. (1) The demand for the seizure of

demand by

immovable property is made by an application.

application.

(2) The application shall contain a

detailed description of the property of which

the sale by auction is demanded, including the

mode in which the property has been acquired

and any burthen attached to the same land and

a plan clearly indicating the site.

The provisions of this article apply

to ships or other vessels exceeding ten metres

in length and to aircraft and such articles shall

also be described in detail, including any rights

and encumbrances thereon.

(3) In the event of a decree as provided

in the proviso to subarticle (2), the procedure

to be followed shall be that laid down in this

Sub-title for the judicial sale by auction of

immovable property.

Duties of the

295. (1) In the court decree ordering

court.

the issue of a warrant of seizure of immovable

property, the court shall

(a)

order the Registrar to appoint

experts in terms of article 89 as may be

required and to fix a short and

peremptory time within which such

appraisments have to be filed and give

any such order as may be necessary for

the better execution of such appointment;

(b)

appoint a day, time and place

for the judicial sale;

(c)

order the Registrar to inform

the Director of the Public Registry and

the Registrar of Lands or any competent

authority which may be appointed

according to regulations made by the

Minister responsible for justice, about the

issuing of the decree on the first working

day thereafter;

(d)

order the Registrar of the

Public Registry to register forthwith the

decree in a book kept for the purpose at

the Public Registry, which book shall be

accessible to the public.

(2)

Such decree shall be served on the

debtor.

296. (1)

Within twenty days from the

Appraisement

by debtor.

time notice of the court decree is served on the

debtor, he may file a separate appraisment and

demand that a new appraisment need not be

effected, provided that such appraisement be a

sworn appraisement.

(2) The sworn appraisement filed by

the debtor shall, within five days, be served on

the creditor who shall then have twenty days to

lodge an opposition to it.

(3)

When a creditor lodges such

opposition to the appraisement filed by the

debtor, the court shall, after hearing both

parties, decide whether it shall appoint a new

expert or not.

(4) An appraisement of the property to

be sold shall always be made before the sale

takes place provided that if an appraisement,

made not earlier than twelve months before the

judgement that is being executed, has been

accepted by the court in its judgement, the

court shall take cognizance of such

appraisement and it shall not appoint new

experts to effect a new appraisement.

Expert to be

297. (1)

The expert shall always be

appointed by

appointed by the court ex officio, according to

court, unless

agreed on by

the panel established in article 89 and on a rota

parties.

system, unless the parties shall have already

filed a note submitting the name of an expert

agreed on between them, or the appraisement

filed in terms of article 296 has been accepted.

(2) The expert shall draft a valuation of

the property together with a detailed

description thereof, including encumbrances

and burthens, and file same under oath with the

Registrar.

(3) The debtor shall under oath give

such information relating to the property as

may be required by the Registrar or by the

experts, and the provisions relating to evidence

shall apply to the debtor.

(4)

The appraisement may not be

contested but the court may, by way of an

application, order the correction of any mistake

made in the description or appraisement.

(5)

The expert appointed under this

Title shall be remunerated in terms of a tariff to

be established according to regulations made

by the Minister responsible for justice.

Appraisement

298. In any appraisement of gold or

of gold or

silver articles, the expert shall state separately

silver articles

to show

the intrinsic value thereof and the cost of

intrinsic

manufacture, as well as the total.

value, etc.

299. (1)

In the valuation of

Valuation of

immovable

immovable property, the experts shall include a

property to

contain

description of the property stating the burdens,

description of

leases and other rights whether real or

property, etc.

personal, if any, to which the property is

subject, as well as the last transfer of such

property according to the information obtained

from the creditor or the debtor.

(2) It shall be lawful, at the written or

Debtor may

be compelled

verbal request of the expert or the creditor, to

to give

information

compel the debtor to confirm on oath, to be

required for

administered by the court or the registrar, the

the purposes

of the

information given to or required by the expert.

valuation.

(3) The debtor shall be called upon to

Debtor to be

called upon

give the above information by means of a letter

by letter from

registrar.

from the registrar.

Applicability

(4) The provisions relating to witnesses

to debtor of

shall apply to any debtor called upon as

provisions

relating to

aforesaid.

witnesses.

Valuation or

300. (1)

The report containing the

appraisement

valuation or appraisement shall be filed by the

to be sworn

by expert.

expert within the time allowed in the decree of

the court according to circumstances, and be

sworn by him in the presence of the Registrar.

(2)

Where a sale by auction of

immovable property or of rights annexed to

immovable property situated in the Island of

Gozo or of Comino, is ordered by any of the

superior courts, it shall be lawful for such court

to order the expert to swear his report at the

Court of Magistrates (Gozo) in the presence of

any of the officers mentioned in article

57(2)(a) to (c), and to deliver the said report, so

sworn, to the said officer, to be by him

transmitted to the superior court which made

the aforesaid order.

(3)

When a sale by auction of

immovable property or of rights annexed to

immovable property situated in the Island of

Malta, is ordered by the Court of Magistrates

(Gozo), it shall be lawful for such court to

order the expert to swear his report in the

presence of the Registrar and to deliver the said

report, so sworn, to the said Registrar, to be by

him transmitted to the Court of Magistrates

(Gozo).

(4) The fee payable to the expert shall

Taxation and

payment of

be taxed by the Registrar, subject to appeal to

expert’s fee.

the court. Such appeal shall be made by

application by any interested party within one

month from the service of the taxed fee. Such

fee shall always be paid by the creditor, saving

his right against the debtor for the

reimbursement of such fee together with the

other expenses of the sale

Provided that when an appeal is

lodged, the creditor shall deposit the fee taxed

by the Registrar and the procedings for sale

shall be further proceeded with and brought to

a conclusion.''.

Articles 305 to 312 of the Code shall be deleted.

Deletion of

articles 305 to

312 of the Code.

Immediately after article 300 of the Code there shall be Addition of new

added the following new sub-heading and the following new articles Sub-title

and

new articles in

Book Second of

301 to 312

the Code.

''Sub-title III

OF THE WARRANT Of SEIZURE OF A COMMERCIAL GOING

CONCERN

301. The movable or immovable property

Sale by

auction of

or the going concerns which are seized from

movable or

immovable

the possession of the debtor, shall be sold by

property and

public auction according to the provisions of

going

concerns.

this Title.

302. Such auctions shall be held

Auctions to

be held

whenever the need arises, there being a

whenever the

need arises.

sufficient amount of property to be sold.

303. (1) The provisions of this Sub-

Provisions

apply both to

title shall apply both to movable and

movable and

immovable

immovable property and to going concerns.

property and

The Registrar and the public auctioneer shall

to going

concerns.

not in any way be impeded from selling

movable property, immovable property or a

going concern during the same auction.

(2) For the purposes of this Sub-title,

the meaning of movable property shall be the

same as that given in Sub-title I of this Title

and the meaning of immovable property shall

be the same as that given in Sub-title II of this

Title, saving that in the case of a going concern

the meaning is that given in article 309 but for

the purposes of this Title a going concern shall

be deemed to be immovable property.

304. The demand for the seizure of a

Demand for

seizure of a

going concern shall be made by means of an

going

concern.

application to be served on the debtor.

Decree

305. In a decree upholding the demand

upholding the

for the issue of a warrant of seizure of a going

demand for

the issue of

concern, the court -

the warrant.

(a)

shall order the Registrar to

appoint such experts according to article

89 who may be required to

(i) enlist and evaluate all

the assets of the going concern;

(ii) file a report whether or

not, considering the debt of the

going concern, such going concern

should be sold or put under

administration for a period of time

during which it could pay back its

debts; and

(b) appoint

a

short

and

peremptory time for the filing of such

appraisements and report and give such

orders as may be necessary for the

carrying out of these instructions

Provided that where the enlisting

and the appraisement of the whole complex

would have already been made in the

proceedings of a precautionary warrant of

seizure of a going concern, the court shall

adopt same and only appoint experts to file a

report whether the going concern should be

sold or put under administration.

306. Following the confirmation on oath

Appointment

of application

of the appraisements and reports, the court

for hearing.

shall within one week appoint the application

for hearing and, after hearing the parties, it

shall decide whether the judicial sale by

auction of the going concern is nevertheless to

be proceeded with or an administrator is to be

appointed to manage the going concern until

the amount due is paid.

307. Where the court decides about the

Appointment

of date, place

holding of a sale, it shall appoint a date, place

and time for

the sale.

and time for the sale of the whole complex as a

going concern.

308. The court shall appoint an

Appointment

of

administrator to carry on with the

administrator.

administration of the going concern until it is

sold

Provided that where in the

proceedings of a precautionary warrant an

administrator would have already been

appointed, he shall be confirmed as such.

309. Articles 297 and 300 shall apply

Applicability

of articles

mutatis mutandis to this warrant.

297 and 300.

310. (1) Where the court decides that

Where court

decides that

the going concern shall continue to be

going

concern shall

administered until payment of the amount due

continue to be

is effected, it shall appoint an administrator

administered.

and give such orders and make such provisions

which it deems appropriate, taking into

consideration the debt, nature and value of the

going concern.

(2) The appointed administrator shall

take control of the going concern and he shall

have the right to sell and carry on trade in its

day to day business, provided that with regard

to any decision of an extraordinary nature he

shall be bound to demand the court for its

authorisation

Provided that a commercial bank

cannot be appointed as administrator.

311. (1) Nothwithstanding

the

Demand for

the sale of the

provisions of article 310, if during his

going

concern.

appointment the administrator is of the opinion

that the going concern is about to lose its

market value, he may demand the court to

authorise him to sell the going concern in

whole or in part.

(2) The appointed administrator under

article 310 shall be entitled to such payment as

the court, in its discretion, may deem fit that he

should receive considering the value of the

going concern and the work done in connection

with the running of the business.

312. For the purposes of this Title, the

Definition of

going

term ''going concern'' means any kind of

concern.

commercial enterprise conducting a business

activity and includes machinery, apparatus,

goods, corporeal and incorporeal rights,

movable property, immovable property,

licences, copyright and good-will.''.

Immediately before article 313, in Part I in Book Second of

the Code, for sub-heading ''Sub-title II - Of Judicial Sale by Auction''

there shall be substituted the following sub-heading

''Sub-title IV - OF JUDICIAL SALES BY AUCTION''.

For article 313 of the Code there shall be substituted the Substitution of

article 313 of

following

the Code.

313. The Registrar shall publish regularly

''Form of

advertisement

in two newspapers, one being in Maltese and

of sale by

auction.

the other in the English language, lists of the

judicial sales by auctions which are about to be

held and he shall indicate clearly therein the

property in such manner that the public is well

informed in order to safeguard the parties’

interests

Provided that the debtor, creditor or

any other interested person may publish and

inform, at their own expense, any particular

sale in any newspaper of their choice or

broadcast same over any other broadcasting

medium.''.

Articles 314 and 315 of the Code shall be deleted.

Deletion of

articles 314 and

315 of the Code.

Article 316 of the Code shall be renumbered as article 314, Amendment of

and subarticle (3) thereof shall be substituted by the following new article

the Code.

subarticle

''(3) In the case of a judicial sale by auction of listed

securities in a recognised exchange, the auction shall be held in

accordance with the procedures prescribed in rules and bye-laws

made under articles 4(2) and 28(2) of the Financial Markets

Act.''.

Immediately after article 314 of the Code as renumbered, Addition of new

articles 315 and

there shall be added the following new articles 315 and 316

316 to the Code.

''Valuation of

315. (1) Immovable property or rights

property to be

annexed to such property, or movable property

sold by

auction.

consisting of gold or silver articles, pearls or

precious stones or of other precious articles,

and commercial going concerns, shall always

be appraised before the sale thereof by auction.

(2) With regard to other movable

property, an appraisement shall only be made if

required by the creditor or by the debtor.

(3) An appraisal made in conformity

with the provisions of articles 297, 300 and

307 and existing in the records of a sale by

auction shall be accepted by the court to be

the appraisement for the purpose of this

article.

Appraisement

316. In any appraisement of gold or

of gold or

silver articles, of pearls or precious stones or of

silver articles

to show

other precious articles the expert shall consider

intrinsic

the intrinsic value thereof and the cost of

value.

manufacture, together with any distinctive

characteristic of the said article and appraise

the total value thereof.''.

For article 317 of the Code there shall be substituted the

following new article

317. The official consignee shall cause

''Removal of

movable

the movable property to be removed to the

property to

place of sale.

place of sale on the day of the sale where such

property shall be exposed to public view at

least two hours before the auction begins.''.

In article 318 of the Code, for the words ''property may be

sold by auction'' there shall be substituted the words ''movable

property may be sold by auction''.

Article 319 of the Code shall be amended as follows

(a)

for subarticle (1) thereof there shall be substituted

the following new subarticle

''(1) The auction shall be, save the exceptions

mentioned in the preceding articles, conducted by a public

auctioneer in the presence of the Registrar.''; and

(b) for subarticle (3) thereof there shall be substituted

the following new subarticles

''(3) An offer shall no longer be valid immediately

when a higher offer is accepted, even though such higher

offer is later declared to be null.

(4) The public auctioneer or broker shall be

entitled to a fee which is taxed by the Registrar in

accordance with a tariff to be established by the Minister

responsible for justice.

(5) No offer may be accepted if such offer is less

than sixty per cent (60%) of the value at which the

movable or immovable property or the going concern has

been appraised.

(6) The public auctioneer shall have the right to

demand that a person submitting an offer should be in

possession of the necessary guarantees.''.

For article 320 of the Code there shall be substituted the Substitution of

article 320 of

following new article

the Code.

320. The auctioneer shall cause that no

''Bids pro

persona

bid shall be accepted if it is either made pro

nominanda,

etc., not to be

persona nominanda or by any person who is

accepted.

notoriously incapable of fulfilling the

obligations arising out of the adjudication.''.

Article 322 of the Code shall be deleted.

Deletion of

article 322 of

the Code.

For article 323 of the Code there shall be substituted the Substitution of

article 323 of

following

the Code.

323. The Minister responsible for justice

''Duration of

auction.

shall by regulations establish the duration of

the auction.''.

Articles 324 and 325 of the Code shall be deleted.

Deletion of

articles 324 and

325 of the Code.

Article 326 of the Code shall be amended as follows

Amendment of

article 326 of

the Code.

(a)

in subarticle (1), immediately after the words ''for

the continuation of the auction'' there shall be added the words

''on another day which shall be appointed by the Registrar

within two weeks'';

(b) in subarticle (3), for the words ''six days'' there shall

be substituted the words ''seven days''; and

(c)

immediately after subarticle (4) there shall be added

the following new subarticle (5)

''(5) The court shall hear the parties about the

demand for suspension, and it shall not give its decree

relating to such application prior to a deposit having been

made of all the expenses with regard to the judicial sale by

auction.''.

Article 327 of the Code shall be deleted.

In article 328 of the Code, immediately after the words ''or

of ships'' there shall be added the words '', or of commercial going

concerns''.

In subarticle (1) of article 329 of the Code, for the words

''by writ of summons'' there shall be substituted the words ''by

application''.

In subarticle (1) of article 331 of the Code, immediately

after the words ''annexed to such property'' there shall be added the

words '', or of commercial going concerns,''.

In article 332 of the Code, for the words ''if by leave of

court previously obtained he shall'' there shall be substituted the

words ''if he shall''.

For article 333 of the Code there shall be substituted the

following new article

333. (1) Any person to whom a

''Animo

compensandi

liquidated debt is owing under any judgement

bid.

or executive title or deed or other obligatory

writing may, by an application, bid animo

compensandi.

(2) Any person who is intent on bidding

animo compensandi shall register his name by

means of a note before the commencement of

the sale by auction by making a sworn

declaration before the Registrar about the

reason why he wishes to bid animo

compensandi.

(3) Any

person

bidding

animo

compensandi may be served notice by any

person having an interest in the judicial sale by

auction at least two weeks before the date of

the sale and whosoever is not served such

notice or is not served notice within such time

may exercise the right under article 356.''.

For article 334 of the Code there shall be substituted the

following

334. Any bid animo compensandi is

''Conditional

leave to bid

made on condition that the bidder shall bind

animo

compensandi.

himself to pay the price into court in case it

shall be so adjudged by the court.''.

For article 335 of the Code there shall be substituted the Substitution of

article 335 of

following

the Code.

335. Any opposition to an application to

''Opposition

to bids animo

bid animo compensandi may only be made

compensandi.

after the sale. No opposition may be made

before or during the sale.''.

Article 336 of the Code shall be deleted.

Deletion of

article 336 of

the Code.

Article 337 of the Code shall be amended as follows

Amendment of

article 337 of

the Code.

(a)

in subarticle (1), for the words ''demand the approval

of the proposed set-off, and shall pay into court'' there shall be

substituted the words ''demand by means of an application

accompanied by a lodgment schedule, the approval of the

proposed set-off, and he shall pay into court''; and

(b) in subarticle (3), for the words ''and shall recover the

costs of the judicial recognition'' there shall be substituted the

words ''and shall recover the legal fees and the costs of the

judicial recognition''.

Article 338 of the Code shall be amended as follows

Amendment of

article 338 of

the Code.

(a)

for subarticle (1), there shall be substituted the

following

''(1) The aforementioned demand shall be

published in the Government Gazette and served on the

debtor and all known creditors, including such persons

who shall have sued out any warrant of seizure or

garnishee order or impediment of departure, and such

persons as are mentioned in the warrant of seizure which

preceded the judicial sale by auction.'';

(b) in subarticle (2), for the words ''The persons so

served shall be allowed the time of three days'' there shall be

substituted the words ''Any person who may have an interest

and the persons so served shall be allowed the time of twenty

days''; and

(c)

for subarticles (3) to (7), there shall be substituted

the following subarticles

(3) It shall be lawful for the court, in

''Condition

which may be

approving the set-off, to require the purchaser

imposed by

court on

to give sufficient security to pay into court the

approval of

set-off.

so adjudged.

(4) When the court upholds the demand,

any person who may have an interest to enter

suit may within twenty days file an appeal by

application, which appeal shall be appointed

and decided within three months from the date

of the decree.

(5) When the Court of Appeal revokes a

decision to grant a bid animo compensandi, it

shall remit the judicial proceedings to the first

court.''.

For article 339 of the Code there shall be substituted the

following new article

339. When there are more than one

''Competition

of creditors.

creditor filing a demand for payment from the

proceeds in such manner that a competition of

creditors would have to take place, it shall be

the same court to commence such proceedings

in terms of articles 416 et sequitur.''.

In the first proviso to subarticle (1) of article 340 of the

Code, for the words ''any person who has made'' and ''within six days''

there shall be substituted the words ''whosoever makes'' and ''within

seven days'' respectively.

For article 342 of the Code there shall be substituted the

following new article

342. If after payment of the claims of the

''Restoration

of balance of

creditors and of the costs, there still remains a

deposit to

debtor.

balance, the court shall, upon the demand of

the debtor, order such balance to be restored to

him.''.

For article 343 of the Code there shall be substituted the Substitution of

article 343 of

following new article

the Code.

343. If it appears during the sale that a

''Disconti-

nuance of

sufficient sum to meet the debts and the costs

sale by

auction and

of the auction has been obtained, the Registrar

restoration of

shall order the auction to be immediately

unsold

property to

discontinued. Upon a verbal demand by the

debtor.

debtor, the court shall order that the unsold

property is to be restored to the debtor.''.

For article 345 of the Code there shall be substituted the Substitution of

article 345 of

following new article

the Code.

345. In the case of seizure of perishable

''Sale of

perishable

merchandise or other articles which are in a

articles.

state of progressive deterioration or of articles

which are about to go out of fashion or become

technologically obsolete, it shall be lawful for

the court, upon the demand of any person

having an interest or of the official consignee,

to order such merchandise or other articles to

be sold in such manner as the court shall deem

proper, including the sale to be effected

forthwith by the Registrar or by the official

consignee.''.

Article 348 of the Code shall be deleted.

Deletion of

article 348 of

the Code.

In article 349 of the Code, for the word ''marshal'' there Amendment of

article 349 of

shall be substituted the words ''court executing officer''.

the Code.

In article 350 of the Code, for the word ''marshal'' there Amendment of

article 350 of

shall be substituted the words ''court executing officer''.

the Code.

In subarticle (1) of article 352 of the Code, for the words Amendment of

''was obtained.'' there shall be substituted the words ''was obtained, in article

the Code.

which case the court shall on a demand made by application proceed,

after hearing the parties, to declare such transfer as null and void and

to adopt such measures as it may deem necessary.''.

Article 353 of the Code shall be amended as follows

Amendment of

article 353 of

the Code.

(a)

in subarticle (1), immediately after the words ''the

auction of the immovable property'' there shall be added the

words ''or of a commercial going concern''; and

(b) in subarticle (2), immediately after the words ''The

auction of the immovable property'' there shall be added the

words ''or commercial going concern''.

For article 354 of the Code there shall be substituted the

following new article

354. (1) When the judgement the

''Execution of

a judgement

execution of which is sought is a judgement

of the Court

of

given by the Court of Magistrates (Malta), its

Magistrates

execution, insofar as it has to be executed on

(Malta) on

immovable

immovable property or rights attached to

property.

immovable property, is to be effected by the

Civil Court, First Hall.

(2) The same rule applies when a

demand is made for the execution of two or

more judgements, whose total joint amount,

not taking into account any expenses, exceeds

the sum of five thousand liri.''.

Article 355 of the Code shall be amended as follows

(a)

in subarticle (1) thereof, immediately after the

words ''his immovable property'' there shall be added the words

''and of a commercial going concern''; and

(b) subarticle (2) shall be deleted and subarticle (3)

shall be renumbered as subarticle (2) thereof.

Article 356 of the Code shall be amended as follows

(a)

in subarticle (3), for the words ''is of a going

concern'' there shall be substituted the words ''is of a

commercial going concern''; and

(b) immediately after subarticle (7) thereof there shall

be added the following new subarticle

''(7A) When such action is exercised and the sale is

effected, the third party which has acquired possession of

the immovable thing in whose favour the property would

have been originally adjudicated, who shall not also be the

same person in whose favour during the second sale the

property has been adjudicated, shall be paid from the

proceeds of the second sale the sum of money which he

would have defrayed together with all expenses made

before any other creditor

Provided that where the third party which has

acquired possession of the immovable thing during the

second sale at a higher price is also the same person in

whose favour the property had been originally adjudicated,

such third party shall be required to deposit in court only

the difference in price, and not the full price.''.

Immediately after article 356 of the Code there shall be Addition of new

article 357 to

added the following new article

the Code.

357. The adjudication of immovable

''Eviction

after

property as of itself constitutes an executive

adjudication.

title and if either the debtor against whom

execution is being sought or a third party

occupying the premises without title fails to

vacate the premises so adjudicated, the

purchaser shall be entitled, within four months

from the adjudication, to seek the issue of a

warrant of eviction on the basis of the said title

of adjudication.''.

The words of the sub-heading ''Sub-title III - Of the Deletion of

Warrant of Imprisonment for Debt'' occurring immediately after words

heading in the

Code.

article 357 of the Code, as added by this Act, shall be deleted.

Immediately after article 357 of the Code, as added by this Addition of new

Act, there shall be added the following new sub-heading and new Sub-title

new articles 358

to 364 in the

Code.

''Sub-title V

OF COURT APPROVED SALES FOR

AIRCRAFT, SHIPS AND VESSELS

Private sale of

358. Notwithstanding

any

other

an aircraft,

provision of this Code, the Court may, on the

ship or vessel.

application of any creditor with an executive

title, approve a private sale of an aircraft, ship

or vessel, in favour of an identified buyer and

in consideration of a determined price.

359. The applicant shall together with the

Appraise-

ments by

application submit appraisements by two

independent

and reputable

independent and reputable valuers confirming

valuers.

the value of the aircraft, ship or vessel; it shall

also be incumbent on the applicant to adduce to

the Court evidence that such private sale is in

the interest of all known creditors and that the

highest appraised value, is reasonable in the

circumstances of the case.

360. No order shall be made by the

Persons called

upon to make

Court before the application has been served

submissions.

on such persons as the Court,

in the

circumstances and upon information given by

the applicant, deems it appropriate to call upon

to make their submissions.

Hearing.

361. The Court shall appoint the

application for hearing within ten days of its

filing.

362. If the Court accedes to the

Where Court

accedes to

application and approves a private sale in

application.

accordance with the provisions of this Sub-

title, the Court shall in its decree of approval

nominate a person who shall thereupon be

entitled to transfer the aircraft, ship or vessel in

accordance with the terms and conditions

approved by the Court, and as if he were the

registered owner thereof.

363. The person so appointed by the

Deposit of

Court shall deposit the price in Court within

seven days from the date of the completion of

the sale.

364. The sale of the aircraft, ship or

Title which is

free from all

vessel in accordance with the provisions of this

privileges and

encumbrances.

Sub-title gives the purchaser a title which is

free from all privileges and encumbrances, and

after the sale all claims or demands against the

aircraft, ship or vessel may be enforced only

against the proceeds of the sale.''.

For the words of Sub-heading ''Sub-title IV - Of the

Executive Garnishee Order'' occurring immediately before article 375

of the Code, there shall be substituted the words ''Sub-title VI - Of the

Executive Garnishee Order''.

For article 376 of the Code there shall be substituted the Substitution of

article 376 of

following new article

the Code.

376. (1) The creditor shall, in the

''Contents of

garnishee

application for the issue of a garnishee order,

order.

correctly state the name and surname of the

debtor, giving other particulars concerning the

debtor as may be ordered by the Minister

responsible for justice for the purpose of the

identification of the debtor by the garnishee.

(2)

The order shall

(a)

state the name and surname of

the debtor and other particulars included

in the application for the purpose of

identification of the debtor, including,

where possible, the identity card number

or the company registration number;

(b)

state the amount or thing due;

(c)

state the title under which the

creditor sues out execution;

(d) enjoin the garnishee not to

pay or deliver up to the debtor, or any

other person, such moneys or things as

may be in his hands but which belong to

the debtor, under penalty of payment of

damages and interest; and

(e)

enjoin the garnishee to lodge,

at the debtor’s expense within twenty-one

days from the date of service of the

warrant, through the Registrar any

moneys or things belonging to the debtor,

as attached by the order.

(3) The lack of any of these particulars

in the garnishee order shall render the said

order to be ipso jure null.''.

In subarticle (1) of article 377 of the Code, for the words Amendment of

article ''by the marshal of a copy thereof to the garnishee'' there shall article

the Code.

be substituted the words ''of a copy thereof, by the court executing

officer, to the garnishee or by such electronic means as may be

prescribed by the Minister responsible for justice''.

For article 378 of the Code there shall be substituted the

following new article

378. A garnishee who, although being in

''Declaration

by garnishee.

possession of moneys or other articles,

belonging to the debtor, or which are due to the

Time for such

debtor, which may have been attached by

declaration.

means of the order, and who does not effect the

deposit referred to in article 376 within such

time as may be laid down in the order, shall be

responsible for ensuing damages and interest in

favour of the creditor and the court may, upon

application being made for that purpose by the

creditor, issue such orders as may be required,

including his personal arrest for a period not

exceeding three months, in order to force him

to lodge such property.''.

For article 379 of the Code there shall be substituted the

following new article

379. (1) In the case of attachment of

''Garnishee

may be

moneys, the garnishee may before lodging

enjoined to

deposit.

such moneys in court retain the costs in respect

of such lodgment and, in the case of attachment

of other movable property, the garnishee shall

have a privileged claim over the property so

lodged in respect of such costs.

(2) In all cases, the execution creditor

and the debtor shall be notified of any such

lodgment into court.''.

Article 380 of the Code shall be deleted.

Article 381 of the Code shall be amended as follows

(a)

in subarticle (1), paragraph (c), immediately after

the word ''charitable grant'' there shall be added the words ''or

donation'';

(b) in subarticle (1), for paragraph (f) there shall be

substituted the following paragraphs

''(f) moneys which have been made available to

the debtor by deed of loan for the building, construction

and maintenance of houses intended as a main dwelling

place for the debtor;

(g) overdraft banking facilities excluding credit

cards by means of which commercial going concerns run

by the debtor are being operated;

(h)

bank guarantees and letters of credit.''; and

(c)

subarticle (2) shall be deleted, and sub-rticles (3)

and (4) shall be renumbered as subarticles (2) and (3)

respectively.

In subarticle (1) of article 382 of the Code, for the words Amendment of

''the court may, on the application by any creditor, allow the issue of a article

the Code.

garnishee order'' there shall be substituted the words ''the issue of a

garnishee order shall be applicable''.

For article 383 of the Code there shall be substituted the Substitution of

article 383 of

following new article

the Code.

383. A garnishee order may not be

''Garnishee

order may not

extended and shall remain in force up to such

be extended.

time as it is revoked by a decree issued by the

court.''.

For the words of sub-heading ''Sub-title V - Of the Warrant Substitution of

of Ejectment or Expulsion from Immovable Property'' occurring sub-heading

the Code.

immediately before article 384 of the Code, there shall be substituted

the words ''Sub-title VII - Of the Warrant of Ejectment or Expulsion

from Immovable Property''.

In article 384 of the Code, for the words ''the marshal'' Amendment of

wherever they occur, there shall be substituted the words ''the court article

the Code.

executing officer''.

For the words of Sub-heading ''Sub-title VI - Of the Substitution of

Warrant In Factum'' occurring immediately before article 385 of the sub-heading

the Code.

Code, there shall be substituted the words ''Sub-title VIII - Of the

Warrant In Factum''.

For article 385 of the Code there shall be substituted the Substitution of

article 385 of

the Code.

following new article

385. (1) In the execution of a warrant

''Warrant in

factum.

in factum, the court executing officer shall

proceed in such manner as ordered in the

warrant.

(2) The warrant in factum shall contain

the order that the party against whom the

warrant is issued is to be conveyed to prison, in

order to be therein kept at his own expense,

until the performance of the act ordered by a

judgment or until such time as the court may

deem necessary to ensure such performance.

(3) The warrant may not be issued other

than by an explicit order of the court to be

issued on a demand made by application by the

creditor.

(4) The court shall only issue the

warrant if it is satisfied that the creditor does

not have any other means of execution

available.''.

Article 387 of the Code shall be amended as follows

(a)

in subarticle (1), for the words ''the marshal'' and

''for seven days'' there shall be substituted the words ''the court

executing officer'' and ''for four days'' respectively;

(b) in subarticle (2), for the words ''seven days'' there

shall be substituted the words ''four days''; and

(c)

in subarticle (3), for the words ''The marshal'' there

shall be substituted the words ''The court executing officer''.

Immediately after article 388 of the Code, there shall be

added the following new sub-heading

''Sub-title IX

OF THE WARRANT OF EXECUTIVE DETENTION

OF AIRCRAFT''.

Immediately after the new sub-heading of Sub-title VIII,

there shall be added the following new articles 388A and 388B

388A. An executive warrant of detention

''Application

for the issue

of aircraft is effected by application in terms of

of a warrant.

articles 858 and 860

Provided that the application shall

contain a detailed description of the aircraft of

which the sale by auction is demanded,

including the mode in which it has been

acquired and any rights and encumbrances

thereon.

388B. (1) The court shall, when a

Court to

decide about

demand is made for the issue of a warrant of

the sale or to

fix time-limit

detention, establish whether it shall order the

for payment.

sale of the said article or to fix a time-limit

within which the debtor is to pay the amount

due.

(2) When the court orders such sale, it

shall proceed according to the procedures laid

down in the provisions relating to judicial sale

by auction.

(3) When the court fixes a time limit

within which the debtor is to pay, it shall order

the warrant to be definitely in force until

payment of the amount due is effected.

(4) When the said time limit passes

without any effect the court shall, on a demand

to be made by the interested party, order the

sale to take place according to the provisions of

subarticle (2).''.

Immediately after article 388B of the Code, there shall be Addition of new

added the following new sub-heading and the following new articles sub-heading

and

articles 388C

and 388D to the

388C and 388D

Code.

''Sub-title X

OF THE WARRANT OF EXECUTIVE ARREST

OF SEA VESSELS

''Application

388C. An executive warrant of arrest of

for the issue

sea vessels is effected by application in terms

of a warrant.

of articles 858 and 860.

388D. (1) The court shall, when a

Court to

decide about

demand is made for the issue of a warrant of

the sale or to

fix time-limit

arrest, establish whether it shall order the sale

for payment.

of the said article or fix a time-limit within

which the debtor is to pay the amount due.

(2) When the court orders such sale, it

shall proceed according to the procedures laid

down in the provisions relating to judicial sale

by auction.

(3) When the court fixes a time limit

within which the debtor is to pay, it shall order

the warrant to be definitely in force until

payment of the amount due is effected.

(4) When the said time limit passes

without any effect the court shall, on a demand

to be made by the interested party, order the

sale to take place according to the provisions of

subarticle (2).''.

Immediately after article 388D of the Code, there shall be

added the following new sub-heading

''Sub-title XI

OF THE WARRANT IN PROCINCTU''.

Immediately after the new sub-heading of Sub-title XI,

there shall be added the following new article 388E

388E. (1) Subject

to

the

other

''Court may

issue other

provisions contained in Title VII of this Code,

orders.

the court may on demand of the party, issue

such orders to the Registrar as it may deem

necessary for the orders contained in the

judgement to be executed

Provided that this warrant shall not

be issued except after an application has been

made to this effect by the creditor and after the

court is satisfied that the creditor does not have

any other means of execution.

(2) There shall be clearly indicated in

the application the reason for the necessity of

such orders and a decree shall be given thereon

after that the debtor has been served notice

thereof, to which he may file a reply within

four days.''.

For the words of sub-heading ''Sub-title VII - Of the Substitution of

Rendering of Accounts and Liquidation of Fruits'' occurring sub-heading

in

the Code.

immediately before article 389 of the Code, there shall be substituted

the words ''Sub-title XII - Of the Rendering of Accounts and

Liquidation of Fruits''.

Immediately after article 742A of the Code, there shall be Addition of new

articles 742B to

added the following new articles 742B to 742D

742D to the

Code.

724B. Save as otherwise expressly

''Jurisdiction

in rem

provided by law, the civil courts of Malta shall

against ships

or vessels.

have jurisdiction in rem against ships or

vessels in the following maritime claims

(a)

any claim to the possession,

ownership or title to or of a ship or to the

ownership of any share therein;

(b) any question arising between

the co-owners of a ship as to the

ownership, possession, employment or

earnings of that ship;

(c)

any claim in respect of a

mortgage, hypothec or charge on a ship

or on any share therein;

(d) any claim arising out of the

contract for the sale of the ship;

(e)

any claim

for

damage

received by a ship;

(f)

any claim for damage done or

caused by a ship, either in collision or

otherwise;

(g) any claim for loss of life or

personal injury caused, whether on land

or on water, by any ship or occurring in

connection with the operation of any ship

or sustained in consequence of any defect

in a ship or in her apparel or equipment or

in consequence of the wrongful act,

neglect or default of -

(i) the owners, charterers

or persons in possession or control

of a ship; or

(ii) the master or crew of a

ship, or any other person for whose

wrongful acts, neglects or defaults

the owners, charterers or persons in

possession or control of a ship are

responsible,

being an act, neglect or default in the

navigation or management of the ship, in

the loading, carriage or discharge of

goods in, in or from the ship, or in the

embarkation, carriage or disembarkation

of persons on, in or from the ship;

(h) any claim for loss of or

damage to goods, including baggage,

carried in a ship;

(i)

any claim arising out of any

agreement relating to the carriage of

goods in a ship or to the use or hire of a

ship, whether by charter party or

otherwise;

(j)

any claim in the nature of

salvage operations or any salvage

agreement including, if applicable,

special compensation relating to salvage

operations in respect of a ship which by

itself or its cargo threatened damage to

the environment;

(k)

any claim for -

(i) damage or threat of

damage caused by the ship to the

environment, coastline or related

interests;

(ii) measures taken to

prevent, minimize or remove such

damage; and for compensation for

such damage;

(iii) costs of reasonable

measures of reinstatement to the

environment actually undertaken or

to be undertaken;

(iv) loss incurred or likely

to be incurred by third parties in

connection with such damage; and

(v) for damage, costs or

loss of a similar nature to those

listed in subparagraphs (i) to (iv);

(l)

any claims regarding costs or

expenses relating to the raising, removal,

recovery, destruction or the rendering

harmless of a ship which is sunk,

wrecked, stranded or abandoned,

including anything that is or has been on

board such ship, and costs or expenses

relating to the preservation of an

abandoned ship and maintenance of her

crew;

(m) any claim in the nature of

towage in respect of a ship;

(n) any claim in the nature of

pilotage in respect of a ship;

(o) any claim in respect of goods,

materials, provisions, bunkers, supplies

and necessaries supplied or services

rendered to a ship for her operation,

management,

preservation

or

maintenance;

(p) any claim in respect of the

construction, re-construction, repair,

conversion or equipping of a ship;

(q) any claim in respect of port,

dock or harbour dues and charges;

(r)

any claim by the master,

officers, or member of the crew, or

complement of a ship, for wages and

other sums due to them in respect of their

employment on the ship including costs

of repatriation, and social security

contributions payable on their behalf;

(s)

any claim by a master,

shipper, charterer or agent in respect of

disbursements made by them on account

of a ship or her owners;

(t)

any claim for commissions,

brokerages, or agency fees payable in

respect of the ship, by or on behalf of the

ship owner or demise charterer;

(u) any claim arising out of an act

which is or is claimed to be a general

average act;

(v) any claim arising out of

bottomry;

(w) any claim for the forfeiture or

condemnation of a ship or of goods

which are being or have been carried or

have been attempted to be carried in a

ship or for the restoration of a ship or any

such goods after seizure;

(x) any claim for insurance

premia, including mutual insurance calls,

in respect of the ship payable by or on

behalf of the ship owner or demise

charterer;

(y) any claim for fees and other

charges due to the Registrar-General of

Shipping and Seamen arising under the

provisions of the Merchant Shipping Act,

and any claim for tonnage dues.

742C. In the cases mentioned in article

Action in rem

in cases

742B(a) to (c), an action in rem may be

mentioned in

article

brought before the civil courts of Malta against

742B(a) to

the ship in connection with which the claim or

(c).

question arises.

742D. Save for those claims which attract

Action in rem

in cases

a special privilege in accordance with article

mentioned in

article

50 of the Merchant Shipping Act, and which,

742B(d) to

in terms of article 37D(3) of the said Act,

(y).

survive the voluntary sale of a vessel by up to

one year, in the cases mentioned in article

742B(d) to (y), an action in rem may be

brought before the civil courts of Malta

against -

(a)

that ship or vessel, where the

person who would be liable on the claim

for an action in personam (''the relevant

person'') was, when the cause of action

arose, an owner or charterer of, or in

possession or in control of, the ship or

vessel, if at the time when the action is

brought the relevant person is either an

owner or beneficial owner of that ship or

the bareboat charterer of it;

(b) any other vessel of which, at

the time when the action is brought, the

relevant person is the owner or beneficial

owner as respects all shares in it.''.

For article 830 of the Code there shall be substituted the Substitution of

article 830 of

following new article

the Code.

''Precaution-

830. (1) The

precautionary

acts

ary acts.

referred to in the last preceding article are the

following

(a)

warrant of description;

(b)

warrant of seizure;

(c)

warrant of seizure

of

a

commercial going concern;

(d)

garnishee order;

(e)

warrant of impediment of

departure;

(f)

warrant

of

detention

of

aircraft;

(g)

warrant of arrest of sea

vessels;

(h) warrant

of

prohibitory

injunction.

(2) (a)

Saving the provisions of

article 870 of this Code and of article 357 of

the Merchant Shipping Act, such acts

mentioned in subarticle (1) shall be rescinded,

if the party against whom the act is issued

makes such deposit or gives such security as,

in the court’s opinion, according to the

circumstances of the case, may be sufficient to

safeguard the rights or claims stated in the act,

or if it is shown that a judicial act accepting

liability as provided in subarticle (3) has been

filed in the proper registry.

(b) Notwithstanding

that

a

deposit is made or security is given as

aforesaid, the time limits established in this

Title on the creditor to bring forward his action

shall continue to apply.

(c)

Such time limits shall run

from the date of the issue of the precautionary

act, and failure by the creditor to institute

proceedings within the said time limits shall

entitle the debtor to withdraw the deposit or

cancel the security.

(3) Where a precautionary act has been

issued against any person, or such as to affect

any property of such person, to secure a claim

for damages, and a locally registered insurance

company or local bureau thereof, as established

in the Motor Vehicles (Third Party Risks)

Ordinance, such person or company shall by

means of a judicial act, filed in the registry of

the said court, within ten days from the date of

the insured person’s demand, declare that he or

the company is accepting liability to pay all

sums that may be due for such damages, in

connection with the claim contained in that act

if such insured person is found to be

responsible for such damages -

(a)

the insurer or local bureau, as

the case may be, shall be liable to pay all

sums that may be due for damages arising

as aforesaid;

(b) the claim for such damages

may be pursued against the insurer or the

local bureau directly; and

(c)

the precautionary act against

such person shall be rescinded.

(4) No precautionary act as provided in

subarticle (3) shall be issued against the

insured if the person intending to sue out the

warrant is cognizant that the insurer or the

local bureau has issued to the insured a valid

insurance certificate accepting liability for the

payment of damages; and in such case the

claim for such damages may be pursued

against the insurer or the local bureau or agent,

as the case may be, directly.''.

For article 831 of the Code there shall be substituted the Substitution of

article 831 of

the Code.

following new article

831. (1) The demand for the issue of

''Application

for issue of

any of the said acts shall be made by an

warrant.

application prepared by the applicant and

containing, under pain of nullity of the act,

other than further details which may be

prescribed by regulations

(a)

the origin and nature of the

debt or claim sought to be secured; and

(b) when the right sought to be

secured by the act is a debt, or a demand

which may be satisfied by the payment of

a sum of money, the amount of such

demand.

If the case has already been

filed in court, such demand may specify

and include all judicial costs.

(2) The application shall be confirmed

on oath by the applicant

Provided that where in an

application there is more than one applicant

demanding the issue of any of the

precautionary acts mentioned in article 830(1)

against the same respondent, the oath shall be

taken by at least one of the applicants.

(3) Any of the warrants or order

mentioned in article 830 shall be issued by the

court

Provided that, where in the opinion

of the Registrar the signature of a judge or

magistrate empowered to issue a warrant of

seizure or a garnishee order or a warrant of

impediment of departure cannot be obtained

within a reasonable time and that delay may be

prejudicial, the said warrants or order may be

issued over the signature of the Registrar

personally after having first obtained verbal

authorisation from the judge or magistrate to

do so. In this case, the judge or magistrate is to

append his own signature under that of the

Registrar at the earliest opportunity to confirm

that he had given the said verbal authority or, if

it is not possible for the Registrar to obtain

such verbal authority, the Registrar shall under

his authority issue the said warrant or order

over his signature, subject to the ratification of

such action by a judge or magistrate at the

earliest opportunity.''.

Article 832 of the Code shall be deleted.

Deletion of

article 832 of

the Code.

For article 833 of the Code there shall be substituted the Substitution of

article 833 of

following new article

the Code.

833. (1) Where an executive judicial

''Request for

the issue of a

letter is filed and sworn according to article

warrant

under article

166A, there may also thereupon be sworn and

166A. filed the precautionary warrants referred to in

article 830(1)(a), (b) and (d)

Provided that when such executive

judicial letter is filed, the applicant shall file a

cause within twenty days from the date of

filing of a full or partial note of contestation or

within sixty days from the date of the issuing

of a warrant according to which date first

occurs.''.

For article 834 of the Code there shall be substituted the Substitution of

article 834 of

the Code.

following new article

834. The court executing officer shall, at

''Notice of

execution of

the earliest time possible, serve notice in

warrant.

writing to the applicant, the lawyer or the legal

procurator whose signature is subscribed on

the application, of the execution of the warrant

or order.''.

Article 835 of the Code shall be deleted.

Article 836 of the Code shall be amended as follows

(a)

for subarticles (2), (3) and (4), there shall be

substituted the following subarticles

''(2) The person making the application according

to subarticle (1) shall, together with the application, file in

writing all submissions to be made together with all

documents in support of the demand that is being filed.

(3) The application, except for any application in

terms of subarticle (1)(a), shall be served on the opposite

party who may, within seven days from the service, file a

note containing all submissions to be made together with

all documents in support of the demand that is being filed.

(4) The court shall decide the application with

urgency either in camera or after hearing the advocates of

the parties, if it deems fit, provided that not more than one

sitting may be fixed for such purpose.''; and

(b)

subarticle (8) shall be amended as follows

(i) in paragraph (a) thereof, immediately after

the words ''if the applicant'' there shall be added the words

'', without any valid reason,''; and

(ii) in paragraph (b) thereof, for the words ''if, on

the demand'' there shall be substituted the words ''if, on

demand''.

Article 837 of the Code shall be amended as follows

(a)

for subarticle (1) there shall be substituted the

following

''(1) The warrants of description and of arrest of a

vessel or of any other sea going craft for the purpose of a

reference to the oath of the opposite party or for the

purpose of securing the enforcement of a judgment not

being for the payment of an acknowledged amount, may be

issued by the Court of Magistrates (Malta), or the Court of

Magistrates (Gozo) in its inferior jurisdiction, but may not

be issued by the Small Claims Tribunal

Provided that the warrant of arrest of a vessel or of

any other sea going craft may neither be issued by the

Court of Magistrates nor by the Small Claims Tribunal.'';

(b) in paragraph (b) of subarticle (4), for the words ''her

clearance; and'' there shall be substituted the words ''her

clearance.'';

(c)

paragraph (c) of subarticle (4) shall be deleted; and

(d) in paragraph (b) of subarticle (5), immediately after

the words ''on which such person is enrolled'' there shall be

added the words ''or by the officer commanding the vessel on

which such person is enrolled,''.

For article 838 of the Code there shall be substituted the Substitution of

article 838 of

following new article

the Code.

838. The court may, when any party

''Precautionary

acts.

makes an application before it which is served

on the other party, give any order as may be

required so as to prevent any damage or

deterioration being caused to the things

described in the precautionary act.''.

Article 838B of the Code shall be amended as follows

Amendment of

article 838B of

the Code.

(a)

in the marginal note to the article, for the words

''until final determination'' there shall be substituted the words

''until the cause becomes res judicata'';

(b) the whole article shall be renumbered as subarticle

(1) thereof and for the words ''until the final determination of

the cause'' there shall be substituted the words ''until the cause

becomes res judicata.''; and

(c)

immediately after subarticle (1) as renumbered,

there shall be added the following new subarticle

''(2) Notwithstanding the provisions of subarticle

(1) of this article, precautionary warrants issued under

article 830(1) become executive warrants after that the

cause becomes res judicata or when in accordance with

article 166B such judicial letter constitutes an executive

title, so however that

(a) in the case of a warrant issued under

article 830(1)(b), (c) and (d), the creditor shall file a

note within twenty days in the acts of the same

warrant and demand an extension or reduction of the

effects of the warrant to an amount equivalent to the

legal costs, interest and the difference in the

principal amount due in terms of the judgement, and

such note is to be served upon the debtor and such

persons as may have any interest therein;

(b) in the case of a warrant issued under

article 830(1)(a), (e) and (f), the creditor shall file an

application under the provisions of article 389

within twenty days from the judgement.''.

For article 843 of the Code there shall be substituted the

following new article

843. (1) The applicant is bound to

''Time within

which to bring

bring the action in respect of the right stated

in the warrant within twenty days from the

issue of the warrant

Provided that where the issue of the

warrant is demanded by any spouse against

the other spouse, and the spouse issuing the

warrant has commenced proceedings in court,

the time limit herebefore mentioned shall

commence running from such date when that

spouse is authorised to proceed by the court,

provided that the warrant shall cease having

its effect immediately upon the proceedings

being withdrawn or abandoned.

(2) If the applicant fails, without just

cause, to bring such action, the effects of the

warrant shall cease and he shall be liable for

all damages and interest.''.

For article 845 of the Code there shall be substituted the

following new article

845. The provisions of articles 278, 279

''Applicability

of articles 278,

and 282, shall apply to the execution of a

279 and 282.

warrant of description.''.

For article 846 of the Code there shall be substituted the Substitution of

article 846 of

following new article

the Code.

846. (1) The warrant of seizure of

''Warrant of

seizure.

movable property shall, other than the details

referred to in article 276, also contain an order

to the Registrar to seize from the debtor such

articles or article from the place therein

indicated.

(2) When a demand is made for the

Official

consignee.

removal of the seized articles the court shall

appoint an official consignee.

(3) The provisions of articles 278 to

Applicability

of articles 278

304 and articles 842, 843 and 844, shall apply

to 304, 842 to

844. to warrants of seizure.''.

Article 847 of the Code shall be amended as follows

Amendment of

article 847 of

the Code.

(a)

for the words ''without a previous judicial

acknowledgment of the debt or claim:'' there shall be substituted

the words ''without a previous judicial acknowledgment or

rendering as an executive title of the debt or claim:'';

(b) in the proviso thereto, for the words ''Provided that

in the case of ships, other vessels, aircraft, perishable goods or

other deteriorating assets,'' there shall be substituted the words

''Provided that in the case of perishable goods or other

deteriorating assets,''; and

(c)

in the said proviso, the words ''plaintiff’s claim, the

defence raised against such'' shall be deleted.

In article 848 of the Code for the words from ''unless, Amendment of

where the debt'' to ''such debt or claim.'' there shall be substituted the article

the Code.

words ''unless the warrant is sued out accompanied by a demand that

the credit or claim are judicially acknowledged and the debt or claim

exceeds five hundred liri, or the demand for such warrant is for an

article which, as stated, is property belonging to the person suing out

the warrant.''.

Immediately after article 848 in Book Third of the Code,

there shall be added the following new sub-heading and the following

new articles 848A and 848B

''Sub-Title III

OF THE WARRANT OF SEIZURE OF A

COMMERCIAL GOING CONCERN

848A. (1) A precautionary warrant of

Scope of

warrant.

seizure of a commercial going concern may

solely be issued to secure a debt or claims

which could be frustrated by the sale in part or

in whole of the said going concern and, for

this purpose, no other warrant may be issued

against the going concern, unless it is this

warrant of seizure.

(2) The effect of a precautionary

warrant of seizure of a commercial going

concern is to preserve the totality of the assets

of the going concern, including licences and

good-will, to order that same is not sold in

part or in whole and are to be concurrently

kept in business, provided that in any case the

court shall not accept a demand for the issuing

of a warrant if it is satisfied that there are

other means to safeguard the amount due.

(3) The court shall not issue any such

warrant unless it is satisfied that such warrant

is necessary in order to protect the rights

belonging to applicant who, prima facie,

appears to have such rights.

(4) The provisions of articles 840, 842,

843, 844 and 848 shall apply to this warrant.

848B. (1) When a demand is made for

Court to

appoint

the issue of this warrant the court shall, after

administrator

and expert.

hearing the parties, appoint an administrator

and in order to effect such action it shall

consider whether to allow the going concern

to continue being run by the debtor or by such

persons as may be entrusted by the debtor

with the assistence of the administrator, or

that an administrator is appointed who in the

opinion of the court has the necessary

qualifications to run and administer the going

concern on his own.

(2) The court shall appoint an expert

under article 89 and establish a short and

peremptory time within which there shall be

filed an itemized list, to be confirmed on oath,

of the value of the whole property forming the

capital of the commercial going concern.

(3) The appointed administrator shall

be responsible for the commercial going

concern and shall have the right to sell and

administer the ordinary running of the

concern provided that for any decision of an

extraordinary nature he shall file a demand in

court for the granting of such authorisation.

(4) The administrator may, if he is of

the opinion that the going concern will incur a

market loss in its value, demand the court

either to authorise him to sell the whole going

concern or any part thereof.

(5) The administrator appointed under

this article shall have the right to such

payment as the court may, in its discretion, be

of the opinion that is due to him in

consideration of the value of the going

concern and of the activity undertaken with

regard to the running of the business.''.

For the words of the sub-heading ''Sub-title III'' occurring Substitution of

in Title VI of Book Third immediately before article 849 of the Code, sub-heading

in

the Code.

there shall be substituted the sub-heading ''Sub-title IV''.

Article 849 of the Code shall be amended as follows

Amendment of

article 849 of

the Code.

(a)

the words ''articles 842, 844'' shall be substituted by

the words ''articles 842, 843, 844'' and

(b) the proviso thereto shall be substituted by the

following

''Provided that where the garnishee is a bank, a

precautionary garnishee order shall not apply to money

payable by the bank in execution of any guarantee given by

the bank that it will effect payment on the demand of the

person in whose favour the banker’s guarantee is made out;

and in any such case, notwithstanding the garnishee order,

the bank shall have power to pay out or otherwise dispose

of any such money as free from any garnishee order and

shall also be entitled to withdraw any such money from

any court or other place, or from any person, into which, or

with whom, it may have been lodged or deposited, and it

shall be the duty of the Registrar of such court or other

person in possession or having control over such money to

return it forthwith to the bank.''.

In subarticle (2) of article 851 of the Code for the words

''in articles 831 and 832'' there shall be substituted the words ''in

subarticle (2) of article 831''.

For the sub-headings ''Sub-title IV'' and ''Of the Warrant of

Impediment of Departure'' in Title VI of Book Third of the Code,

there shall be substituted the following

''Sub-title V

OF THE WARRANT OF DETENTION OF AIRCRAFT''.

Articles 855 to 870 of the Code shall be deleted.

Immediately after the new Sub-title V of the Code, there

shall be added the following new articles 855 to 872C

855. (1) For the purposes of this Sub-

''Object of

warrant.

title and of articles 358 to 364, both inclusive,

an aircraft shall be considered to be an object

of a perishable nature in accordance with the

provisions of this Code.

(2) The provisions of Article 843 shall

apply to this warrant.

(3) A warrant of detention of any

aircraft may solely be issued to secure a debt

or claim pursuant to -

(a)

regulations or orders issued

in accordance with article 19 of the Civil

Aviation Act in relation to

(i) airport charges owed

at Maltese airports; and

(ii) air navigation charges

owed to the Malta Air Traffic

Services Limited or such company

as the Minister may, from time to

time, by order in the Gazette,

establish; or

(b) regulations issued pursuant

to article 6 of the Eurocontrol Act in

relation to air navigation charges owed

to the European Organisation for the

Safety

of

Air

Navigation

(EUROCONTROL),

and no other warrant may be issued against an

aircraft unless it is a warrant of detention.

Warrant to

856. (1) The warrant of detention

have effect

shall have the effect to seize the aircraft from

both to seize

and to attach

the debtor and also to attach it in the hands of

aircraft.

the person or body at the time responsible for

the management of the airport or of the place

where the aircraft is situate, and also to order

that the said person or body shall not release

such aircraft or allow the debtor to divest

himself in any way from the same in whole or

in part or to give or surrender to any person

any rights on the same.

(2) The warrant is executed for all

effects of the law when notice is served on the

person or body referred to in subarticle (1).

857. The person or body referred to in

Display of

court order.

article 856(1) shall take all necessary

measures to display the court order

sufficiently in advance of the issue of the

warrant for the general attention of third

parties

Provided that the disembarkation of

passengers and the unloading of cargo and

luggage on board shall not be restricted, and

the operator of the aircraft shall be allowed

access to it for maintenance purposes.

Warrant to be

858. A warrant of detention shall be

sued out on

issued by means of an application on a form to

appropriate

form.

be prescribed by the Minister responsible for

justice, on which form there shall be included

a court decree by virtue of which the

necessary orders are given and issued.

859. A warrant may be demanded and

Warrant

available

obtained in security of a debt or any other

where claim is

not less than

claim listed in article 855 amounting to not

Lm400,000.

less than four hundred thousand liri.

Statement to

860. The application for the issue of a

be contained

warrant shall, under pain of nullity, state in a

in application.

clear manner all particulars, the name of the

authority in whose hands the aircraft is and

the place where the aircraft is to be found.

Penalty in case

861. Where it is found that the warrant

of malicious

was obtained upon a demand maliciously

demand for

warrant.

made, the penalty in terms of article 836(8)

shall not be less than four hundred thousand

liri.

Security for

862. It shall be lawful for the court, on

payment of

good cause being shown, upon the demand by

penalty, etc.

application by a person whose aircraft is

detained, by the captain of the aircraft or by

any person being in charge thereof or having

an interest therein, to order the party suing out

the warrant to give, within a time fixed by the

court, sufficient security, in an amount not

less than four hundred thousand liri, for the

payment of the penalty, damages and interest

and, in default, to rescind the warrant.

863. Notwithstanding the provisions of

Security for

release of

article 830(2)(a), the court shall order the

aircraft.

immediate release of the aircraft where

sufficient security is deposited in court by the

operator of the aircraft or any person having

an interest therein, amounting to the value of

the debt and costs, or covering the value of the

aircraft, if its value is lower than the amount

of the debt and costs

Provided that the security shall be

appropriated exclusively to the payment of the

creditor

Provided further that all claims for the

release of aircraft shall be dealt with by

summary and rapid procedure.

864. (1)

No warrant shall be issued

Aircraft not

subject to the

against -

issue of a

warrant.

(a)

any aircraft exclusively

appropriated to a State service, including

the postal service, both private and state

owned, but excluding commercial

service;

(b) every

other

aircraft

appropriated to the carriage of persons

or goods for reward, where such aircraft

is ready to start on such carriage, unless

the detention is in respect of a contract

debt incurred for the purposes of the

journey which the aircraft is about to

make, or of a claim which has arisen in

the course of the journey.

(2) The provisions of subarticle (1) do

not apply to a warrant sought out by an owner

dispossessed of an aircraft by an unlawful act.

(3) No warrant shall be issued against

any aircraft used by military forces.

(4) If an aircraft which is exempt from

detention under this article has been detained,

or if the operator or other interested party has

been compelled to give security in order to

prevent detention or to obtain a release of

such aircraft, the person effecting the

detention shall be liable for any damage

which results therefrom on the operator or the

owner of the aircraft.

(5) A warrant of detention of an

aircraft shall, on an application by any

interested party, be rescinded if the court is

satisfied that because of the nature of the

journey or the cargo or other circumstances

concerning safety, navigation or airport

operation, it is advisable that the aircraft

should leave without delay.

Sub-title VI

OF THE WARRANT OF ARREST

OF SEA VESSELS

865. (1) A warrant of arrest of any

Object of

warrant.

sea-going vessel having a length exceeding

ten metres may solely be issued to secure a

debt or claims, whether in personam or in

rem, which could be frustrated by the

departure of the said ship, and no other

warrant may be issued against a sea-going

vessel unless it is a warrant of arrest, and

whether such vessel is at sea or at some other

place.

(2) The provisions of article 843 shall

apply to the warrant.

866. (1) The warrant of arrest shall

Warrant to

have effect

have the effect to seize the sea vessel, having

both to seize

and to attach

a length exceeding ten metres, from the debtor

the vessel.

and also to attach the same in the hands of the

authority where the property is, and also to

order that the said authority shall not release

such sea vessel or allow the debtor to divest

himself in any way from the same in whole or

in part or to give or surrender to any person

any rights on the same.

(2) The warrant is executed for all

effects of the law when notice is served on the

executive officer of the authority who has in

his hands the sea vessel.

(3) A copy of the warrant of arrest

shall also be served on the person whose ship

or vessel is arrested, the master or other

person in charge of such ship or vessel, or the

agent of such ship or vessel.

867. (1) The authority who has in its

The authority

in charge of

hands or under its control the sea going vessel

the vessel to

be considered

against which such warrant of arrest has been

official

issued shall, for all purposes of the law, be

consignee.

considered to be the official consignee

according to the provisions of articles 286,

287, 288, 289 and 290.

(2) The said authority shall take all

necessary measures to display the court order

for the general attention of third parties.

(3) For the purposes of this warrant the

Malta Maritime Authority shall be deemed to

be the authority having in its hands or under

its power or control the arrested ship or

vessel.

(4) A vessel is deemed to be in the

power or control of the Malta Maritime

Authority as soon as the vessel enters Maltese

territorial waters.

(5) All expenses as may be necessary

for the preservation of the arrested ship or

vessel shall be borne by the party issuing the

warrant, saving his right to recover such

expenses together with his claim.

Warrant to be

868. (1) A warrant of arrest shall be

sued out on

sued out by means of an application on a form

appropriate

form.

to be prescribed by the Minister responsible

for justice, on which form there shall be

included a court decree by virtue of which the

necessary orders are given and issued.

(2) The court executive officer shall

have the power to adopt, subject to such

directives as may be given by the Court or the

Registrar of Courts, all such measures as may

be deemed necessary for the execution of the

warrant of arrest.

Warrant

869. A warrant may be demanded and

available

obtained in security of a debt or any other

where claim is

not less than

claim whatsoever amounting to not less than

Lm3,000.

three thousand liri.

870. The application for the issue of a

Statement to

be contained

warrant of arrest shall, under pain of nullity,

in application.

state in a clear manner such particulars as may

enable the identification of the ship or vessel,

the name of the authority in whose hands or

under whose power or control the arrested

ship or vessel may be, as well as the place

where the ship or vessel is to be found.

871. Where it is found that the warrant

Penalty in case

of malicious

was obtained upon a demand maliciously

demand for

warrant.

made, the penalty in terms of article 836(8)

shall not be less than five thousand liri.

872. It shall be lawful for the court, on

Security for

payment of

good cause being shown, upon the demand by

penalty, etc.

application by a person whose ship or vessel

is detained, by the master of the ship or vessel,

or by any person being in charge thereof or by

its agent, to order the party suing out the

warrant to give, within a time fixed by the

court, sufficient security, in an amount not

less than five thousand liri, for the payment of

the penalty, damages and interest and, in

default, to rescind the warrant.

872A. (1) No warrant shall be issued

Ships or

vessels not

against any ship or vessel wholly chartered in

subject to the

issue of a

the service of the Government of Malta or

warrant.

employed in any postal service either by the

Government of Malta or by any other

government.

(2) No warrant shall be issued against

any ship of war.

(3) A warrant of arrest of a ship or

vessel shall, on an application by the Malta

Maritime Authority, be rescinded if the court

is satisfied that because of the nature of its

cargo or of its length or draught or other

circumstances concerning safety, navigation

or port operation, it is advisable that the ship

or vessel should leave port without delay.

(4) Following the arrest of a ship or

vessel in any port or harbour or in the

territorial waters of Malta, and on an

application of the Malta Maritime Authority, a

court may, if it is satisfied that because of the

nature of its cargo and, or other circumstances

concerning safety or pollution it is advisable

that the ship or vessel should leave port and,

or Maltese territorial waters, rescind the

warrant of arrest and order that the ship or

vessel should leave Malta and its territorial

waters without delay.

Order for the

872B. The court may order the sale of an

sale of a ship

arrested ship or vessel pendente lite if it

or vessel

pendente lite.

appears to the court upon the application of a

creditor that the debtor is insolvent or

otherwise unlikely to be able to continue

trading and maintaining the asset. In reaching

its conclusion the court shall consider all the

circumstances connected therewith, including

the nature of the plaintiff’s claim, the defence

raised against such claim, if any, and such

other steps which the debtor has taken to

secure the claim, or otherwise to preserve the

asset.

872C. (1) If, notwithstanding the issue

Joint and

several

and execution of a precautionary warrant of

liability.

arrest, a ship or vessel is removed from the

jurisdiction of the court in breach of the

warrant of arrest, the owner, bareboat

charterer or other person being in possession

of the ship or vessel at the time of such breach

shall be jointly and severally liable to a

penalty of fifty thousand liri payable to the

party issuing the warrant.

(2) The liability for the payment of a

penalty arising under this article shall be

without prejudice to any other possible

sanction arising under the provisions of Title

XVII of Book Third of this Code.''.

For the sub-headings ''Sub-title IV'' and ''Of the Warrant of

Impediment of Departure'' in Title VI of Book Third of the Code,

there shall be substituted the following

''Sub-title VII

OF THE WARRANT OF PROHIBITORY INJUNCTION''.

(1) For articles 873 to 875 of the Code, there shall be

substituted the following new articles

873. (1) The object of a warrant of

''Object of

warrant.

prohibitory injunction is to restrain a person

from doing anything whatsoever which might

be prejudicial to the person suing out the

warrant.

(2) The court shall not issue any such

Inquiry of

court.

warrant unless it is satisfied that such warrant

is necessary in order to preserve any right of

the person suing out the warrant, and that

prima facie such person appears to possess

such right.

(3) The court shall not issue any such

warrant against the Government or authority

established by the Constitution or any person

holding a public office in his official capacity

unless the authority or person against whom

the warrant is demanded confirms in open

court that the thing sought to be restrained is

in fact intended to be done and the court is

satisfied, after hearing the explanations given,

that unless the warrant is issued the prejudice

that would be caused to the person suing out

the warrant would be disproportionate when

compared with the actual doing of the thing

sought to be restrained.

(4) If on an application, it is proved to

the satisfaction of the court that subsequent to

the issue of the warrant of prohibitory

injunction the person restrained has acted

directly or indirectly in breach of the court’s

order, the court shall, without prejudice to any

other action competent to it at law, at a request

of applicant, condemn the person against

whom the warrant had been issued to remedy

what was committed in breach of its order and

to authorise in default the applicant to carry

out such remedial works as the court may

direct at the expense of the person restrained.

874. (1) A warrant of prohibitory

Warrant to

secure debt or

injunction may also be demanded by a

claim.

creditor to secure a debt or any other claim

amounting to not less than five thousand liri.

The object of such a warrant is to restrain the

debtor from selling, alienating, transferring or

disposing inter vivos such property as may be

indicated in the application by onerous or

gratuitous title or in any manner creating a

burthen or real and, or personal rights;

provided that such a warrant shall not apply to

the constitution of any right on, or alienation

or transfer of any property made pursuant to a

court order, or over bank guarantees and

letters of credit.

(2) Where a warrant prohibits the sale,

alienation, transfer or other disposal of

immovable property the application shall

contain all the particulars relating to the

person against whom it is directed that are

required by law in respect of the registration

of a transfer of immovable property by such

person in the Public Registry. Where the

warrant refers to specific immovables, the

application shall describe them in the manner

provided for in the Public Registry Act, in

respect of notes of enrolment, namely it shall

apply with reference to the geographical data

in question.

(3) The warrant referred to in

subarticle (2) shall upon its issue and at the

expense of the applicant, be served by the

Registrar within twenty-four hours on the

Director of the Public Registry and the Land

Registrar or on such authority as may be

nominated by the Minister responsible for

justice, who shall forthwith register the same

in books kept for the purpose. Such books

shall be indexed and accessible to the public.

It shall also be served upon any person

indicated by the applicant.

(4) Upon registration of the warrant

referred to in subarticle (2) by the Director of

the Public Registry, any future sale,

alienation, transfer or disposal of immovable

property to which the warrant refers shall be

void and to no effect.

(5) Without prejudice to the provisions

of article 836, the warrant referred to in

subarticle (2) shall, unless previously revoked

or otherwise ceasing to be in force, continue

to have effect for a period of one year from

the date of final judgment in favour of the

creditor in his action for the recovery of the

debt or claim referred to in subarticle (1).

(6) Where a warrant prohibits the sale

or transfer of the shares in a commercial

partnership, notice shall also be served on the

Registrar of Companies and from the date of

such service any transfer of shares shall be

null.

Execution of

875. (1) The application shall be

warrant.

served on the party against whom it is issued

who shall file a reply thereto within ten days

Provided that the court may, in urgent

cases, reduce the said period in this subarticle.

In default of opposition, the court may accede

to the demand.

(2) The court may initially issue

provisionally a warrant for a short period

under such terms and conditions as it may

deem necessary according to the case, and

subsequently decide about the matter in a

definitive manner.

(3) The court shall, after appointing

the application for hearing, decide on its

merits after receiving any evidence it deems

fit, within the shortest time possible but not

any later than one month from the day when

the warrant had been filed and confirmed on

oath.''.

(2) Immediately after article 876 of the Code there shall be

added the following new article

''Applicability

876A. The provisions of articles 829 and

of certain

844 shall apply to the warrant of prohibitory

articles.

injunction.''.

Articles 54, 56, 61, 90, 93 to 129, 137 to 148, 165 to 171, Amendment of

173 to 178, and 180 to 184 of the Courts and Tribunals Procedures Act

2002. Act, 2002 shall be deleted.

(1)

Article 370 of the Merchant Shipping Act shall be Consequential

amendment to

deleted.

the Merchant

Shipping Act.

(2) Notwithstanding the provisions of subarticle (1),

proceedings commenced before the court in accordance with article

370 of the Merchant Shipping Act before the coming into force of this

article shall continue to be regulated by the said article 370 until they

become res judicata.

Immediately after the second proviso to article 2 of the Amendment of

Commissioner of Land Ordinance, there shall be added the following the

Commissioner

new article

of Land

Ordinance.

3. (1) The Minister responsible for

"Assignment

of duties.

land may, with effect from such date as he may,

by notice in the Gazette, appoint, assign any of

the duties in the exercise of the rights and

responsibilities of the Commissioner of Land in

accordance with article 2, to any other person to

be designated in such notice, which duties shall

be specifically designated in such notice.

(2) Notwithstanding the provisions of

subarticle (1), all rights and responsibilities to

which the duties assigned in accordance with

subarticle (1) relate shall, by virtue of article 2,

remain vested in the Commissioner of Land.".

In subarticle (11) of article 4 of the Prevention of Money

Laundering Act for the words ''from the date on which it is made; and

the court shall not make another attachment order'' there shall be

substituted the words ''from the date on which it is made, in which

case the Attorney General shall, by notice in writing, inform the

suspect and the garnishees in the manner provided for in subarticle

(9), and the court shall not make another attachment order''.

The provisions of this Act shall apply to new proceedings

which will be filed or commenced after the coming into force of the

said provisions. Precautionary and executive warrants which have

been commenced and which are still pending shall continue to be

valid and there shall apply in their regard the law as herebefore

applicable

Provided that any precautionary warrant which shall still be

pending on its date of commencement of this Act shall, as from such

commencement date, be regulated by the provisions of this Act.

Passed by the House of Representatives at Sitting No. 427 of the

26th July, 2006.

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives