The judge at first instance had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution although six years had passed since the judgment. On appeal the judgment creditor challenged the validity of the rule of court dating from 1883 requiring leave to proceed to levy execution. It was contended that the rule was in conflict with s2(4). It subjected the right of execution, if not exercised within 6 years, to the discretion of the court. The judgment creditor argued that it was entitled by statute to bring an action upon the judgment and to issue execution, which was ‘a proceeding in a court of law’ and therefore an ‘action upon a judgment.’ Such an action could be brought, without obtaining the leave of the court, within 12 years from the date on which the judgment became enforceable.
Held: The expression ‘an action upon any judgment’ in s 2(4) of the 1939 Act was interpreted to apply only to suing for a judgment upon a judgment. It did not apply to execution of a judgment. The Court rejected the contention that the provision in the Rules of the Supreme Court (O 42 r23(a)), requiring a judgment creditor, after the elapse of 6 years from the date of the judgment, to obtain the leave of the court to levy execution, was rendered invalid by s2(4) of the 1939 Act, which allowed 12 years for bringing an action upon any judgment as of right. Scott LJ: The 12 year limitation period set in the 1939 Act dealt only with the ‘substantive right to sue for and obtain a judgment, and with that alone;’ the period did not apply to the ‘procedural machinery for enforcing a judgment when obtained.’ The broad definition of ‘action ‘ in the 1939 Act did not have the effect of merging what had formerly been the two ‘quite independent and distinct’ subjects of (a) the substantive right to sue for and obtain a judgment and (b) the procedural machinery for enforcing a judgment when obtained. It did not cover an application to the court for leave to levy execution on the judgment after the expiration of 6 years.
Judges:
Scott L
Citations:
[1948] 2 KB 331
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Limitation
Updated: 05 June 2022; Ref: scu.223038
