ENACTMENT NO. 13 OF 2002 SYARIAH COURT CIVIL PROCEDURE (STATE OF MALACCA) ENACTMENT 2002
PART XVIII - ENFORCEMENT AND EXECUTION CHAPTER 3 - EXECUTION
Section 161. Hiwalah.
(1) In this section, “property” includes a debt due by the muhal a‘laih to the judgment debtor.
(2) The following provisions shall apply where the execution is ordered by attachment of property in the possession or control of a muhal a’laih:
(a) the bailiff shall serve on the muhal a’laih a hiwalah notice in Form MS 37, and the notice in Form MS 38 shall be used if the property is in the Court;
(b) all property specified in a hiwalah notice shall be attached as from the service of the notice on the muhal a’laih to the extent or value therein mentioned, and any alienation or disposal of the property contrary to the terms of the notice, except with the leave of the Court, shall be void against the bailiff, and the such action shall also be a contempt of Court;
(c) the muhal a’laih may pay to the bailiff the amount claimed or may deliver to him the property attached;
(d) if the muhal a’laih does not make such payment or delivery, the bailiff may serve on him a hiwalah summons in Form MS 39 and the Court shall examine him as to the property attached;
Provided that:
(i) no such summons shall be issued to a public servant in respect of money or property in his possession in his capacity as such, except with the leave of the Court and the consent in writing from the Treasury; and
(ii) no such summons shall be issued in the case of money, investment funds or property in any Court;
(e) the Court may hear other evidence on any hiwalah summons;
(f) after hearing the summons, the Court may make an order for payment or delivery and may order execution to be issued against the muhal a’laih for any property found to have been lawfully attached in hands, as if he were himself a judgment debtor for the amount claimed against the original judgment debtor, or for the amount or value of the property in the muhal a’laih’s hands, whichever is less;
(g) the Court—
(i) may order costs against the muhal a’laih, and may grant or refuse him his recourse therefor against the judgment debtor;
(ii) may allow costs to the muhal a’laih against the judgment creditor, and may grant or refuse leave to treat the costs as costs of the execution;
(h) if a debt due on a judgment and payable by instalments is attached, the muhal a’laih shall not be liable to pay except in accordance with the order for instalments;
(i) payment by the muhal a’laih under this section shall be a valid discharge against the judgment debtor;
(j) the bailiff may, at the request of the judgment creditor, and shall, if so ordered by the Court, withdraw any hiwalah notice or hiwalah summons;
(k) a hiwalah notice shall be deemed to be vacated three months after service, unless proceedings under the summons are then pending or the Court otherwise orders.