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BANKRUPTCY AMENDMENT ACT 1980 No. 12 of 1980 - SECT 109
Duties of sheriff after receiving notice of signing of authority under section 188, &c.
109. (1) Section 205 of the Principal Act is repealed and the following
sections are substituted:
"205. (1) Subject to this section, where notice in writing of the signing by a
debtor of an authority under section 188, of the calling of a meeting of
creditors of a debtor in pursuance of this Division or of the passing of a
special resolution under section 204 requiring a debtor to execute a deed of
assignment or a deed of arrangement or present a debtor's petition or
accepting a composition is given to a sheriff, the sheriff-
(a) shall refrain-
(i) from taking any action to sell property of the debtor in
pursuance of any process of execution issued by or on behalf of
a creditor; and
(ii) from taking any action on behalf of a creditor to attach a debt
due to the debtor; and
(b) shall not-
(i) pay to the creditor by whom, or on whose behalf, the process of
execution was issued, or to any person on his behalf, the
proceeds of the sale of property of the debtor that has been
sold in pursuance of any such process or any moneys seized, or
paid to avoid seizure or sale of property of the debtor, in
pursuance of any such process; or
(ii) pay to the creditor, or to any person on his behalf, any moneys
received as a result of the attachment of the debt due to the
debtor.
"(2) Where a notice is given under sub-section (1) to a sheriff, a creditor
who has issued a process of execution, or on whose behalf a process of
execution has been issued, against property of the debtor, or who has taken
action, or on whose behalf action has been taken, to attach a debt due to the
debtor, in respect of a liability of the debtor under a maintenance agreement
or maintenance order (whether entered into or made, as the case may be, before
or after the commencement of this section) may give to the sheriff a notice in
accordance with the prescribed form, being a notice in the form of a statutory
declaration, specifying such particulars of the maintenance agreement or
maintenance order as are required by the form, and, upon the giving of the
notice, sub-section (1) ceases to apply in relation to the process of
execution or attachment, as the case may be.
"(3) Subject to this section, where notice in writing of the signing by a
debtor of an authority under section 188, of the calling of a meeting of
creditors of a debtor in pursuance of this Division or of the passing of a
special resolution under section 204 requiring a debtor to execute a deed of
assignment or a deed of arrangement or present a debtor's petition or
accepting a composition is given to the registrar or other appropriate officer
of a court-
(a) to which the proceeds of the sale of property of the debtor or other
moneys have been paid by a sheriff in pursuance of a process of
execution issued, by or on behalf of a creditor, against property of
the debtor; or
(b) to which moneys have been paid in pursuance of proceedings instituted,
by or on behalf of a creditor, to attach a debt due to the debtor, any
of those proceeds or moneys not paid out of court shall not be paid to
the creditor or to any person on his behalf.
"(4) Where a notice is given under sub-section (3) to the registrar or other
appropriate officer of any court, a creditor who has issued a process of
execution, or on whose behalf a process of execution has been issued, against
property of the debtor, or who has taken action, or on whose behalf action has
been taken, to attach a debt due to the debtor, in respect of a liability of
the debtor under a maintenance agreement or maintenance order (whether entered
into or made, as the case may be, before or after the commencement of this
section) may give to the registrar or other officer a notice in accordance
with the prescribed form, being a notice in the form of a statutory
declaration, specifying such particulars of the maintenance agreement or
maintenance order as are required by the form, and, upon the giving of the
notice, sub-section (3) ceases to apply in relation to the process of
execution or the attachment, as the case may be.
"(5) Sub-section (1) does not prevent the sheriff from selling property,
taking action to attach a debt or paying the proceeds of the sale of property
or other moneys to a creditor or a person on his behalf, and subl 71170 71180
section (3) does not prevent moneys in court from being paid out of court to a
creditor or a person on his behalf, if-
(a) having received notice of the signing by the debtor of an authority
under section 188, the sheriff, registrar or other officer does not,
within 42 days from the date on which the debtor signed the authority,
receive notice of the passing of a special resolution under section
204 requiring the debtor to execute a deed of assignment or a deed of
arrangement or present a debtor's petition or accepting a composition;
(b) having received notice that a meeting of creditors of the debtor has
been called, the sheriff, registrar or other officer does not, within
7 days from the date for which the meeting was called, receive notice
of the passing of a special resolution referred to in paragraph (a) or
of the adjournment of the meeting;
(c) having received notice of the adjournment of a meeting of creditors of
the debtor, the sheriff, registrar or other officer does not, within 7
days from the date to which the meeting was adjourned, receive notice
of the passing of a special resolution referred to in paragraph (a) or
of the further adjournment of the meeting; or
(d) having received notice of the passing of a special resolution referred
to in paragraph (a) (not being a special resolution accepting a
composition), the sheriff, registrar or other officer does not, within
21 days from the date on which the resolution was passed, receive
notice that the deed required to be executed has been duly executed or
that the debtor has presented a debtor's petition.
"(6) Where-
(a) the sheriff, in pursuance of sub-section (1) of this section or of
sub-section 119 (1) or (2), refrains from taking action to sell
property of a debtor (being real property), the debtor executes a deed
of assignment or a deed of arrangement under this Part, or a special
resolution is passed under section 204 accepting a composition in
relation to the debtor, and the property vests in the trustee of the
deed or is subject to the terms of the composition, as the case may
be; or
(b) a sheriff, in pursuance of sub-section (1), refrains from taking
action to sell property of a debtor (being real property), the debtor
becomes a bankrupt and the property vests in the trustee in the
bankruptcy, the costs of the execution are a first charge on that
property.
"(7) A failure by the sheriff to comply with a provision of this section does
not affect the title of a person who purchases property of a debtor in good
faith under a sale by the sheriff in pursuance of a process of execution
issued by or on behalf of a creditor.
"205A. (1) Subject to this section, where a deed of assignment has been duly
executed (whether before or after the commencement of this section) by a
debtor under this Part, the trustee of the deed may give to the sheriff or to
the registrar or other appropriate officer of a court notice in writing of
that fact and, upon the giving of the notice-
(a) the sheriff shall deliver or pay to the trustee-
(i) any property of the debtor in his possession under a process of
execution issued by or on behalf of a creditor;
(ii) any proceeds of the sale of property of the debtor or other
moneys in his possession, being proceeds of the sale of
property sold, whether before or after the debtor executed the
deed, in pursuance of any such process or moneys seized, or
paid to avoid seizure or sale of property of the debtor,
whether before or after the debtor executed the deed, in
pursuance of any such process; and
(iii) any moneys in his possession as a result of the attachment, by
or on behalf of a creditor, of a debt due to the debtor; or
(b) the registrar or other officer of the court shall pay to the trustee-
(i) any proceeds of the sale of property of the debtor or other
moneys in court, being proceeds of sale or other moneys paid
into court, whether before or after the debtor executed the
deed, by a sheriff in pursuance of a process of execution
issued, by or on behalf of a creditor, against property of the
debtor; and
(ii) any moneys in court that have been paid into court, whether
before or after the debtor executed the deed, in pursuance of
proceedings instituted, by or on behalf of a creditor, to
attach a debt due to the debtor, as the case requires.
"(2) Subject to this section, where-
(a) the sheriff is satisfied-
(i) that a deed of arrangement has, after the commencement of this
section, been duly executed by a debtor under this Part; and
(ii) that-
(A) property of the debtor in his possession under a process
of execution issued by or on behalf of a creditor;
(B) proceeds of the sale of property of the debtor or other
moneys in his possession, being proceeds of the sale of
property sold, whether before or after the debtor
executed the deed, in pursuance of any such process or
moneys seized, or paid to avoid seizure or sale of
property of the debtor, whether before or after the
debtor executed the deed, in pursuance of any such
process; or
(C) moneys in his possession as a result of the attachment,
by or on behalf of a creditor, of a debt due to the
debtor, is not, or are not, subject to the provisions of
the deed, the sheriff shall deliver that property, or pay
those proceeds or other moneys, as the case requires, to
the debtor or to a person authorized by the debtor in
writing for the purpose; or
(b) the registrar or other appropriate officer of a court is satisfied-
(i) that a deed of arrangement has, after the commencement of this
section, been duly executed by the debtor under this Part; and
(ii) that-
(A) proceeds of the sale of property of the debtor or other
moneys in court, being proceeds of sale or other moneys
paid into court, whether before or after the debtor
executed the deed, by a sheriff in pursuance of a process
of execution issued, by or on behalf of a creditor,
against property of the debtor; or
(B) moneys in court that have been paid into court, whether
before or after the debtor executed the deed, in
pursuance of proceedings instituted, by or on behalf of a
creditor, to attach a debt due to the debtor, are not
subject to the provisions of the deed, the registrar or
other officer shall pay those proceeds or other moneys,
as the case requires, to the debtor or to a person
authorized by the debtor in writing for the purpose.
"(3) Subject to this section, where-
(a) the sheriff is satisfied-
(i) that a deed of arrangement has, after the commencement of this
section, been duly executed by the debtor under this Part; and
(ii) that-
(A) property of the debtor in his possession under a process
of execution issued by or on behalf of a creditor;
(B) proceeds of the sale of property of the debtor or other
moneys in his possession, being proceeds of the sale of
property sold, whether before or after the debtor
executed the deed, in pursuance of any such process or
moneys seized, or paid to avoid seizure or sale of
property of the debtor, whether before or after the
debtor executed the deed, in pursuance of any such
process; or
(C) moneys in his possession as a result of the attachment,
by or on behalf of a creditor, of a debt due to the
debtor, is, or are, subject to the provisions of the
deed, the sheriff shall deliver that property or pay
those proceeds or other moneys, as the case requires, to
the trustee of the deed; or
(b) the registrar or other appropriate officer of a court is satisfied-
(i) that a deed of arrangement has, after the commencement of this
section, been duly executed by a debtor under this Part; and
(ii) that-
(A) proceeds of the sale of property of the debtor or other
moneys in court, being proceeds of sale or other moneys
paid into court, whether before or after the debtor
executed the deed, by a sheriff in pursuance of a process
of execution issued, by or on behalf of a creditor,
against property of the debtor; or
(B) moneys in court that have been paid into court, whether
before or after the debtor executed the deed, in
pursuance of proceedings instituted, by or on behalf of a
creditor, to attach a debt due to the debtor, are subject
to the provisions of the deed, the registrar or other
officer shall pay those proceeds or other moneys, as the
case requires, to the trustee of the deed.
"(4) Subject ot this section, where-
(a) the sheriff is satisfied-
(i) that a special resolution accepting a composition has been
passed under section 204 in relation to a debtor after the
commencement of this section; and
(ii) that-
(A) property of the debtor in his possession under a process
of execution issued by or on behalf of a creditor;
(B) proceeds of the sale of property of the debtor or other
moneys in his possession, being proceeds of the sale of
property sold, whether before or after the passing of the
special resolution, in pursuance of any such process or
moneys seized, or paid to avoid seizure or sale of
property of the debtor, whether before or after the
passing of the special resolution, in pursuance of any
such process; or
(C) moneys in his possession as a result of the attachment,
by or on behalf of a creditor, of a debt due to the
debtor, is not, or are not, subject to the terms of the
composition, the sheriff shall deliver that property, or
pay those proceeds or other moneys, as the case requires,
to the debtor or to a person authorized by the debtor in
writing for the purpose; or
(b) the registrar or other appropriate officer of a court is satisfied-
(i) that a special resolution accepting a composition has been
passed under section 204 in relation to a debtor after the
commencement of this section; and
(ii) that-
(A) proceeds of the sale of property of the debtor or other
moneys in court, being proceeds of sale or other moneys
paid into court, whether before or after the passing of
the special resolution, by a sheriff in pursuance of a
process of execution issued, by or on behalf of a
creditor, against property of the debtor; or
(B) moneys in court that have been paid into court, whether
before or after the passing of the special resolution, in
pursuance of proceedings instituted, by or on behalf of a
creditor, to attach a debt due to the debtor, are not
subject to the terms of the composition, the registrar or
other officer shall pay those proceeds or other moneys,
as the case requires, to the debtor or to a person
authorized by the debtor in writing for the purpose.
"(5) The sheriff, registrar or other officer of a court shall not, in
pursuance of sub-section (4)-
(a) in the case of the sheriff-deliver property or pay the proceeds of the
sale of property or other moneys; or
(b) in the case of the registrar or other officer-pay moneys in court, to
the debtor or to a person authorized by the debtor unless-
(c) 21 days have elapsed since the day on which the special resolution
accepting the composition was passed; and
(d) the sheriff, registrar or other officer, as the case may be, is
satisfied that application has not been made to the Court for an order
to set aside the composition or that the application, or each
application, made for such an order has been withdrawn or dismissed.
"(6) Subject to this section, where-
(a) the sheriff is satisfied-
(i) that a special resolution accepting a composition has been
passed under section 204 in relation to a debtor after the
commencement of this section; and
(ii) that-
(A) property of the debtor in his possession under a process
of execution issued by or on behalf of a creditor;
(B) proceeds of the sale of property of the debtor or other
moneys in his possession, being proceeds of the sale of
property sold, whether before or after the passing of the
special resolution, in pursuance of any such process or
moneys seized, or paid to avoid seizure or sale of
property of the debtor, whether before or after the
passing of the special resolution, in pursuance of any
such process; or
(C) moneys in his possession as a result of the attachment,
by or on behalf of a creditor, of a debt due to the
debtor, is, or are, subject to the terms of the
composition, the sheriff shall deliver that property, or
pay those proceeds or other moneys, as the case requires,
to the trustee of the composition; or
(b) the registrar or other appropriate officer of a court is satisfied-
(i) that a special resolution accepting a composition has been
passed under section 204 in relation to a debtor after the
commencement of this section; and
(ii) that-
(A) proceeds of the sale of property of the debtor or other
moneys in court, being proceeds of sale or other moneys
paid into court, whether before or after the passing of
the special resolution, by a sheriff in pursuance of a
process of execution issued, by or on behalf of a
creditor, against property of the debtor; or
(B) moneys in court that have been paid into court, whether
before or after the passing of the special resolution, in
pursuance of proceedings instituted, by or on behalf of a
creditor, to attach a debt due to the debtor, are subject
to the terms of the composition, the registrar or other
officer shall pay those proceeds or other moneys, as the
case requires, to the trustee of the composition.
"(7) The sheriff, registrar or other officer of a court shall not, in
pursuance of sub-section (6)-
(a) in the case of the sheriff-deliver property or pay the proceeds of the
sale of property or other moneys; or
(b) in the case of the registrar or other officer-pay moneys in court, to
the trustee of the composition unless-
(c) 21 days have elapsed since the day on which the special resolution
accepting the composition was passed; and
(d) the sheriff, registrar or other officer, as the case may be, is
satisfied that application has not been made to the Court for an order
to set aside the composition or that the application, or each
application, made for such an order has been withdrawn or dismissed.
"(8) Where property is, or the proceeds of the sale of property or other
moneys are, required by sub-section (1), (2), (3), (4) or (6) to be delivered
or paid to the trustee of a deed or a composition or to a debtor or a person
authorized by the debtor, the costs of the execution or attachment, as the
case may be, are a first charge on that property or those proceeds of sale or
other moneys, as the case may be.
"(9) For the purpose of giving effect to the charge referred to in sub-section
(8), the sheriff, registrar or other officer of a court may retain, on behalf
of the creditor entitled to the benefit of the charge, such amount from the
proceeds of sale or other moneys referred to in that sub-section as he thinks
necessary for the purpose.
"(10) Where a sheriff, registrar or other officer of a court has, in pursuance
of sub-section (1), (2), (3), (4) or (6), delivered property or paid moneys to
the trustee of a deed or a composition or to the debtor or a person authorized
by a debtor, the creditor who issued the process of execution or instituted
the attachment proceedings, or on whose behalf the process was issued or the
proceedings instituted, as the case may be, may prove under the deed or
composition as an unsecured creditor as if the execution or attachment, as the
case may be, had not taken place.
"(11) Where-
(a) a sheriff, registrar or other officer of a court has, in pursuance of
sub-section (1), delivered to the trustee of a deed of assignment
property that was seized, or paid to the trustee of such a deed the
proceeds of the sale of property or other moneys that were received,
as a result of the issue of execution against property of a debtor or
the attachment of a debt due to a debtor; and
(b) that property or debt would not have been property divisible amongst
the creditors of the debtor if the debtor had executed the deed
immediately before the execution was issued or the debt was attached,
as the case may be, the trustee shall deliver that property, or pay
those proceeds or other moneys, as the case requires, to the debtor or
to a person authorized by the debtor in writing for the purpose.
"(12) Where-
(a) property has been delivered by a sheriff, or the proceeds of the sale
of property or other moneys have been paid by a sheriff, registrar or
other officer of a court-
(i) to the trustee of a deed of assignment in pursuance of
sub-section (1);
(ii) to a debtor or a person authorized by the debtor in pursuance
of sub-section (2) or (4);
(iii) to the trustee of a deed of arrangement in pursuance of
sub-section (3); or
(iv) to the trustee of a composition in pursuance of sub-section
(6); and
(b) the property was in the possession of the sheriff, or the proceeds of
the sale of the property or the other moneys were in the possession of
the sheriff or paid into court, as the case may be, under or in
pursuance of a process of execution issued, or proceedings to attach a
debt instituted, by or on behalf of a creditor in respect of a
liability of the debtor under a maintenance agreement or maintenance
order (whether entered into or made, as the case may be, before or
after the commencement of this section), the trustee, debtor or other
person, as the case may be, to whom the property has been delivered,
or those proceeds or other moneys have been paid, shall deliver that
property, or pay those proceeds or other moneys, as the case requires,
to that creditor.
"(13) A failure by a sheriff to comply with a provision of this section does
not affect the title of a person who purchases property of a debtor in good
faith under a sale by the sheriff in pursuance of a process of execution
issued by or on behalf of a creditor.".
(2) Where notice of the signing by a debtor of an authority under section 188
of the Principal Act, of the calling of a meeting of creditors of a debtor in
pursuance of Division 2 of Part X of the Principal Act or of the passing of a
special resolution under section 204 of the Principal Act requiring a debtor
to execute a deed of assignment or a deed of arrangement or present a debtor's
petition or accepting a composition has been given to a sheriff or to the
registrar or other appropriate officer of a court under section 205 of the
Principal Act before the commencement of this section, the notice has effect
after the commencement of this section, for the purposes of the Principal Act
as amended by this Act, as if the notice had been a notice given to the
sheriff or to the registrar or other officer of the court, as the case
requires, under section 205 of the Principal Act as amended by sub-section (1)
of this section.
(3) Notwithstanding the repeal of section 205 of the Principal Act effected by
sub-section (1) of this section, where the trustee of a deed of assignment
executed by a debtor under Part X of the Principal Act has, before the
commencement of this section, served notice of the execution of the deed on
the sheriff or the registrar or other officer of a court under sub-section 205
(4) of the Principal Act, the provisions of sub-sections 205 (4), (6) and (7)
continue to apply, after the commencement of this section, in relation to the
debtor as if section 205 of the Principal Act had not been repealed.
(4) Notwithstanding the repeal of section 205 of the Principal Act effected by
sub-section (1) of this section, where a debtor has, before the commencement
of this section, executed a deed of arrangement under Part X of the Principal
Act, the provisions of sub-section 205 (4), (6) and (7) continue to apply,
after the commencement of this section, in relation to the debtor as if
section 205 of the Principal Act had not been repealed.
(5) Notwithstanding the repeal of section 205 of the Principal Act effected by
sub-section (1) of this section, where a special resolution accepting a
composition in relation to a debtor has been passed under section 204 of the
Principal Act before the commencement of this section, the provisions of
sub-sections 205 (5), (6) and (7) continue to apply, after the commencement of
this section, in relation to the debtor as if section 205 of the Principal Act
had not been repealed.
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