A charging order on land under section 35(1) of the 1956 Act obtained to enforce a judgment debt was a form of ‘execution’ for the purposes of section 325 CA 1948. Lord Denning MR: ‘The word ‘execution’ is not defined in the Act. It is, of course, a word familiar to lawyers. ‘Execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated: ‘Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he heath the possession of the land, or is paid the debt or damages, or heath the body of the defendant awarded to prison, then he heath execution.’ And the same meaning is to be found in Blackman v. Fysh,[1892] 3 Ch 209,217 (C.A.) when Kekewich J. said that execution means the ‘process of law for the enforcement of a judgment creditor’s right and in order to give effect to that right.’ In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was ‘execution’ because it was the process for enforcing or giving effect to the judgment of the court.’
Harman LJ: ‘Now what is execution but the enforcement of a judgment or order? In my judgment, the new remedy given by section 35 is merely an alternative method of execution against the debtor’s land, replacing the old writ’.
Judges:
Lord Denning MR, Harman LJ
Citations:
[1963] I Ch 24
Statutes:
Administration of Justice Act 1956 35(1), Companies Act 1948 325
Jurisdiction:
England and Wales
Cited by:
Cited – Brenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.
Company
Updated: 17 May 2022; Ref: scu.228985