CHAPTER 94
IMMOVABLE PROPERTY (JUDICIAL SALES) ACT

Arrangement of Sections

1. Short title.

PART I

Chapter I - Seizure of immovable property (Saisie Immobilière)

Sub-Head I
Seizure of immovable property in general

2. Seizure to be preceded by commandment.

3. Periods for seizure after commandment.

4. Authority to usher to seize.

5. Requisites of the memorandum of seizure.

6. Notification of seizure.

7. Transcription of the seizure.

8. Transcription of seizures of land registered under Land Registration Act.

9. Concurrent seizure.

10. Anterior seizure.

11. Judicial sequestrator.

12. Sale of crop.

13. Produce of land immobilised.

14. Deterioration of the property seized.

15. Voidable leases.

16. Immobilisation of rent.

17. Execution debtor cannot alienate.

18. When sale may be validated.

19. Ranking of money borrowed to pay off inscribed claims.

20. Deposit of money to pay off claims, when too late.

21. Deposit of memorandum of charges.

22. Notice to execution debtor.

23. Notice to inscribed creditors.

24. Notice to unpaid vendor.

25. Stay of sale upon vendor's declaration.

26. When sale may take place notwithstanding such action.

27. Entry of notices in margin of inscription of seizure.

28. Originals of notices and copies of newspapers to be filed.

29. Reading of memorandum of charges.

30. Change in conditions of sale.

31. Notice of day of sale and warning of creditors.

32. Taxation of costs of sale.

33. Cost of sale.

34. Announcement of costs of sale.

35. Proceedings on day of sale.

36. Postponement of sale.

37. Fresh publication after postponement.

38. Bidding how to be made.

39. If mise à prix not covered.

40. Election of domicile by purchaser.

41. Bidding on behalf of another.

42. Parties incapacitated from purchasing.

43. Title of the adjudicatee.

44. When to be delivered to purchaser.

45. Purchaser not fulfilling conditions liable to folle enchère.

46. Judgement of adjudication not to be notified.

47. Formalities and periods.

48. Misdescription of one of several properties included in same seizure.

49. Rights vested in the purchaser.

50. After sale, remedy restricted to production upon sale price.

Sub-Head II
Seizure of small properties

51. Formalities for sale of small properties.

52. How value to be ascertained.

Chapter II - On incidental applications after seizure of an immovable property (Des Incidents De La Saisie Immobilière)

53. Form of incidental application.

54. Service thereof.

55. Consolidation of several seizures.

56. Carriage of sale in such case.

57. Second seizure more extensive than first. Consolidation.

58. Subrogation of second seizing creditor.

59. Subrogation in seizure generally.

60. Negligence.

61. Decision of Judge as to subrogation.

62. Proceedings on subrogation.

63. Continuance of proceedings in subsequent seizures after erasure of first seizure.

64. Demand of distraction.

65. Form of demand.

66. Demand as to portion of seizure.

67. Nullities anterior to the reading.

68. Nullities subsequent to the reading.

69. Notice of day fixed for hearing objections.

70. Nullities in cases of small properties.

71. Costs of objection.

72. Costs of sale claimable at time of sale.

73. Costs of sale claimable at Ordre.

74. Costs only claimable if client collocated.

75. Costs when claim settled.

Chapter III - Of the sale of immovable property belonging to minors

76. To be authorised by family council.

77. Homologation.

78. Order for sale.

79. Memorandum of charges.

80. Day of sale.

81. Notice to inscribed creditors, of filing.

82. Notice to unpaid vendor.

83. Notice to sub-guardian.

84. Notice of day of sale to be sufficient notice to creditors by legal mortgage not inscribed.

85. Change in conditions of sale. Demands in nullity.

86. Costs of objection.

87. Bidding not reaching the upset price.

88. Notice of day of sale.

89. Apportionment of price where property belongs to several minors.

90. Costs of sale.

91. Private sale of share of minor in property.

92. Definition of "minor" and "guardian".

93. Share of minor.

94. Exchange of property belonging to minors.

95. Benefit of inventory maintained notwithstanding any such sale.

96. Value of property or share, how ascertained.

97. Nullities.

Chapter IV - Sales by licitation

98. Demand in licitation.

99. Of several demands.

100. Collective demand by co-licitants.

101. Commencement of proceedings. Memorandum of charges.

102. Notification of deposit of memorandum of charges.

103. Objection to licitation. Conditions of sale or nullities.

104. If no objection, judge to fix day of sale.

105. Notice to be published on day of sale.

106. Application for stay of licitation on grounds of hardship.

107. Application for stay of licitation and division in kind.

108. Judge's order thereon fixing day.

109. Service of order.

110. Parties appearing to elect domicile in Victoria.

111. When Judge may refuse application for division in kind.

112. Appraisement.

113. Formation of lots in case of unequal rights.

114. Costs where division in kind refused, Order for licitation.

115. Confirmation of appraiser's report.

116. Drawing of lots.

117. Memorandum of proceedings by judge.

118. Partition by agreement.

119. Costs.

Chapter V - Sales under benefit of inventory

120. Petition for sale. Proceedings.

121. Consequence of non compliance with formalities.

Chapter VI - Sequestration

122. Powers of the Supreme Court.

123. Application for order of sequestration.

124. Inspection of the property.

125. Interventions.

126. Duration of sequestration.

127. Order to specify the amount to be expended.

128. Privilege of sequestration.

129. Sequestrator not to have any interest in supplies to the estate.

130. Sequestration accounts.

Chapter VII - Provisions applicable in general to all sales by public competition

131. Provisions applicable to all sales.

PART II

Chapter I - Of outbidding (De La Surenchère)

132. Time for, and amount of outbidding.

133. How to be made.

134. Amount of deposit.

135. Publication of outbidding by judge.

136. Costs of outbidding.

137. Reopening bidding.

138. Outbidders making default, to forfeit amount of deposit.

139. No outbidding on outbidding allowed.

140. Except when property resold by folle enchére.

Chapter II - Of the folle enchère

141. Folle enchére upon non execution of the conditions of sale.

142. Before judgement of adjudication taken out.

143. Objections.

144. Proceedings for resale.

145. Notices.

146. Postponement of sale.

147. Resale prevented by adjudicatee.

148. Costs of concurrent sale and resale.

149. Liability of the fol enchérisseur.

PART III

Procedure for the clearance of immovable properties sold otherwise than by public auction before the judge

150. New proprietor to deposit his title deed and notify the deposit thereof to inscribed creditors.

151. Requisition for resale before judge.

152. If no requisition price definitively fixed.

153. Formalities of resale.

154. Memorandum of charges.

155. Sale not to be stopped.

156. Forfeiture of deposit.

157. Case of several properties in the deed of sale.

158. Reimbursements to evicted purchaser in case of resale.

159. Effect of adjudication.

160. Foregoing provisions applicable to exchange and donations.

PART IV

Of the distribution by way of order (De L’ Ordre)

161. Judgement of adjudication to be registered and transcribed.

162. Application for certificate of inscriptions.

163. Registrar to transmit certificate to judge.

164. Opening of ordre.

165. Notice to inscribed creditors.

166. Notice to adjudicatee and to judgement creditor.

167. Originals to be filed in registry.

168. Production of claims.

169. Notice of provisional closing of ordre.

170. Late production.

171. Foreclosure.

172. Ventilation.

173. Contredits.

174. Partial closing of ordre as to uncontested claims.

175. Final closing where no contestation.

176. Costs of acquittance.

177. Day of hearing objections.

178. Appeal.

179. Final closing of ordre after appeal.

180. Costs of contested claims.

181. Erasure of inscriptions.

182. Certificate of erasure to be annexed to memorandum.

183. Mainlevée on payment of warrant.

184. Erasure by Registrar of inscriptions as each claim paid.

185. Definitive erasure of ex-officio inscription.

186. Ordre how opened in sales other than by forcible ejectment.

187. Warrants for payment executory.

188. Payment of interest when ordre not closed in six months.

189. Inscription by creditor to preserve rights of debtor.

190. Subrogation in proceedings for non-observance of formalities.

191. Rectification of ordre in case of folle enchère.

192. Distribution of sale price.

193. No right of folle enchère by unpaid vendor.

Of distribution of sale price otherwise than by way of ordre

194. Order to be made fixing date of hearing on application.

195. Parties to be ordered to file claims.

196. Production out of time.

197. Closing of provisional scheme.

198. Objections to provisional scheme.

199. Notice of objections.

200. Any interested party may apply for day of hearing of objections to be fixed.

201. Application of section 174.

202. Appeals.

203. Registrar may draw up provisional scheme of distribution.

204. Warrants for payment.

205. Price of estate sold before the Judge.

PART V

Chapter I - Consequential effects of sales before the judge

206. Price fixed by sale.

207. Legal Mortgages.

208. Date of sale.

Chapter II - Appeals from decisions of the judge

209. Time of appeal.

210. Setting down appeals for hearing.

211. Dismissal of appeal. Costs.

212. Possession of property pending appeal.

Chapter III - General dispositions

213. Incidental application before the Judge.

214. Nullities.

215. Parties in the same interest to be represented by same attorney.

216. Judgement by consent as to costs.

217. Newspapers prove themselves.

218. Petitions to Judge need not be registered.

219. Notaries to insert mainlevée in deeds of acquittance and to erase inscription.

220. Seizure lapsed if no step taken for one year.

221. Suggestions.

222. One notice sufficient for each inscribed creditor.

223. Service of notices on heirs in cases of forcible ejectment.

224. Manner of publishing notices.

225. Boundaries of property to be sold, description.

226. Proof of publication in newspaper to be filed.

227. Notices may be published in English and French.

228. Schedules to form part of this Act.

PART VI

Repeal of anterior laws

229. Repeal of parts of the French Code of Civil Procedure.

230. Repeal of certain articles of the Civil Code.

231. General repeal.

SCHEDULE A

SCHEDULE B

SCHEDULE C

SCHEDULE D

19 of 1868,

15 of 1888,

6 of 1890,

8 of 1893,

3 of 1900,

16 of 1908,

26 of 1915,

3 of 1959,

3 of 1963,

18 of 1963,

14 of 1964,

26 of 1964,

13 of 1965,

25 of 1965,

4 of 1975,

13 of 1975,

23 of 1976.

SI 72 of 1976,

61 of 1988,

41 of 1991.

*Mauritius Acts.
Proc.36 of 1877.

[Date of commencement: 12th October 1877]

1. Short title.

This Act may be cited as the Immovable Property (Judicial Sales) Act.

PART I

Chapter I

Seizure of Immovable Property (Saisie Immobilière)

Sub-Head I

Seizure of Immovable Property in General

2. Seizure to be preceded by commandment.

Every seizure of immovable property shall be preceded by a commandement to be served upon the debtor in person. The creditor shall, in the commendement elect a domicile at the office of the attorney at law retained by him for the purpose of such proceedings, at which domicile all acts relative to or in connection with the proceedings, or the claims to be enforced thereunder, shall be served upon him. He shall thereby notify to his debtor that, if he fail to pay the amount claimed, a seizure will be effected of his immovable property.

It shall not be necessary to copy or to set forth in extenso in the commandement the title (titre) in virtue of which the seizure is to be made; it shall be sufficient to mention and describe the same, by stating the date of the title, the name of notary (if the title be a notarial deed), the amount of the sum due and the nature of the claim.

If the title be a notarial deed, it shall not be necessary to take a copy in executory form (grosse exécutoire) either for the purpose of the commandement or of the seizure, anything contained in Article 2213 of the Civil Code of Seychelles to the contrary notwithstanding.

The usher* serving the commandement need not be accompanied by witnesses: he shall within forty eight hours after service obtain upon the original the visa of the Registrar of the Supreme Court.

[*Note to 1991 Ed: As to "usher", see section 22(3) of the Courts Act (Cap 52); see also section 8 of proclamation 36 of 1877 referred to in note under the heading Explanation of terms used in this Act.]

3. Periods for seizure after commandment.

The seizure of immovable property cannot be effected until after the expiration of ten days from the date of the commandement.

If the creditor allows more than ninety days to elapse, after service, without having effected the seizure, he shall be bound to serve a fresh commandement subject to the same formalities and within the same time limits, as prescribed in section 2.

4. Authority to usher to seize.

The usher effecting the seizure must have a special authority so to do, in writing, from the execution creditor. Such authority shall be annexed by the usher to his memorandum of seizure, and shall be registered therewith.

5. Requisites of the memorandum of seizure.

The memorandum of seizure (procès verbal de saisie) besides the formalities common to all ushers' process shall contain—

(i) A description of the title in virtue of which the seizure is effected, the said description containing the date of the title, the name of the notary (if the act is notarial), the amount of the debt, and a reference to the transcription, if the title has been transcribed.

(ii) Mention of the presence of the usher upon the property at the time of effecting the seizure.

(iii) A description of the property seized, viz.: In the case of urban property, the district, the street, and the street number, if such there be, of the property, and if there be no number, two at least of the meets and bounds (tenants et aboutissants) of the property.

In the case of rural property, the district, the boundaries, the approximate area of the land, a description of the buildings, machinery and plantations thereon, and the enumeration of the carts and animals seized—

(iv) The apparent value of the property as estimated by the usher.

(v) Constitution of an attorney at law whose office shall be taken to be the domicile of the execution creditor, and at which domicile all acts connected with the seizure shall be served upon the said creditor.

6. Notification of seizure.

If the execution debtor (saisie) be domiciled in the district where the property seized is situated, the usher shall, at the time of the seizure, leave a copy of his memorandum of seizure with the said debtor in person, or at his domicile.

If the execution debtor be domiciled in another district, or if he reside at a distance of more than six miles from the property seized, the usher shall within eight days after the registration of the seizure serve a copy of his memorandum of seizure upon the said debtor in person or at his domicile.

If the seizure be made upon the heirs of the original debtor, it shall be sufficient notification to serve one copy upon the heirs collectively at the elected or at the last known domicile of the deceased.

7. Transcription of the seizure.

The memorandum of seizure shall be transcribed at the Mortgage Office within fifteen days after notification thereof, and at the same time mention of such notification and of the mode in which it has been made shall be inserted upon the margin of the transcription.

8. Transcription of seizures of land registered under Land Registration Act.

The transcription of seizures in respect of land registered under the Land Registration Act shall be effected by delivering to the Land Registrar an application for a restriction under section 84 of that Act with a certified copy of the memorandum of seizure.

9. Concurrent seizure.

In case the Registrar of Deeds is unable to transcribe the seizure immediately after the same has been, for that purpose, presented to him, he shall make a note upon the original left with him of the hour, day, month and year, when the same shall have come to his hands, and if there be concurrent seizures, the seizure first presented to him shall be transcribed.

10. Anterior seizure.

If there has been an anterior seizure the Registrar of Deeds shall note his refusal in the margin of the second seizure; he shall note the date of the anterior seizure, the name, residence and calling of the execution creditor and of the execution debtor the name of the attorney of the execution debtor and the date of the transcription of the seizure.

11. Judicial sequestrator.

If the property seized is not let or leased, the execution debtor shall continue in possession thereof, as judicial sequestrator, unless it shall be otherwise ordered in accordance with the provisions of Chapter VII of Part I.

12. Sale of crop.

At any time, while the execution debtor remains in possession of the property seized, as judicial sequestrator, any creditor may obtain an order for the sale of part or of the whole of the crop of the said property. Application for such order shall be made conformably with the provisions of Chapter VII and the net proceeds of the sale shall be deposited in the hands of a Judge of the Supreme Court.

13. Produce of land immobilised.

The natural and industrial produce of the property seized, or the proceeds of the sale thereof shall, after transcription, be immobilised, to be distributed together with the sale price of the property according to the rank of claims thereon.

14. Deterioration of the property seized.

The execution debtor is prohibited from cutting down timber or in any way deteriorating the value of the property seized. In case of his so doing he shall be liable to an action in damages, entailing arrest in execution, without prejudice to any criminal prosecution to which he may thereby render himself liable.

15. Voidable leases.

Any lease made subsequently to the transcription of the seizure, shall be null ipso facto, without the necessity of proceedings being taken for having it annulled.

As to leases made between the date of service of the commandement and the date of the transcription, they may be annulled at the instance of any creditor or of the adjudicatee.

In no case shall any lease be valid, unless it has been inserted in the memorandum of charges, and made one of the conditions of the sale.

And any creditor inscribed before the transcription of any such lease shall have a right to prevent the insertion of any such lease in the memorandum of the cahier des charges.

16. Immobilisation of rent.

The rents and profits of the property shall be immobilised from the date of the transcription of the seizure, to be distributed together with the sale price of the property, according to the ranking of claims.

A simple opposition without further formality, at the instance of the execution or any other creditor, shall operate as an attachment in the hands of the lessee who shall henceforth be bound to deposit in the hands of a Judge all rent due by him, so often as the same shall fall due. Failing any such opposition, any payments made to the debtor shall operate pro tanto as a valid discharge to the lessee, and the execution debtor shall be accountable, as judicial sequestrator of the property, for the amount so paid to him.

17. Execution debtor cannot alienate.

The execution debtor, from and after the date when the seizure shall have been transcribed, shall have no right to alienate or hypothecate the property under seizure; any alienation or hypothecation so made shall be null and void ipso facto, without the necessity of proceedings being taken to have the nullity declared.

18. When sale may be validated.

Nevertheless, any such alienation shall become valid and effectual if, before the date fixed for the adjudication of the property, the purchaser deposit in the hands of a Judge a sum sufficient to cover in principal, interest and costs, the amount due to the inscribed creditor (who shall require payment) and to the execution creditor, and if he notify to such parties respectively the fact of such deposit having been made.

19. Ranking of money borrowed to pay off inscribed claims.

If the moneys so deposited have been borrowed, the lender can only acquire a mortgage taking rank subsequent to the creditors inscribed at the date of sale.

20. Deposit of money to pay off claims, when too late.

Failing such deposit as aforesaid, no further time for making the deposit shall be granted under any pretext whatever.

21. Deposit of memorandum of charges.

Within thirty days of the transcription of the memorandum of seizure, the execution creditor shall deposit at registry the memorandum of charges (cahier des charges) which shall contain—

(i) a reference, to the title in virtue of which seizure has been made, to the usher's memorandum of seizure including the return of service, and to any procedure or judgements or orders which may have been rendered or made in the course of the proceedings;

(ii) the description of the property as set forth in the memorandum of seizure;

(iii) the conditions under which the property is to be sold;

(iv) a mise à prix on the part of the seizing creditor.

The Judge shall, at the foot of the memorandum of charges, fix the day for the reading thereof, or for the sale of the property if the property seized is a small property which is to be sold conformably to subhead II of this Chapter.

22. Notice to execution debtor.

Within eight days of filing the memorandum of charges, notice thereof shall be served upon the execution debtor, in person or at his domicile. The notice shall call upon the execution debtor to examine the memorandum of charges and to make thereon such observations as he may think fit, and further to be present at the time of the reading of the memorandum of charges, at which time a day shall be fixed for the final adjudication. The notice shall specify the day, hour and place appointed for the reading.

23. Notice to inscribed creditors.

A similar notice shall be served within the same period, at the respective domiciles elected by them in their inscriptions, upon all inscribed creditors, who have taken their inscriptions before the date of the deposit of the memorandum of charges.

One notice shall suffice for each creditor, whatever may be the number of inscriptions taken by him.

24. Notice to unpaid vendor.

If, amongst the inscribed creditors there be any creditor holding a vendor's privilege duly inscribed, a similar notice shall be served upon that creditor at the domicile elected by him in his inscription.

The notice shall inform such creditor that unless he commences his action in cancellation of sale, and makes a declaration of having done so, at the foot of the memorandum of charges, before the day to be fixed for the adjudication, he shall be definitively foreclosed, quà the adjudicate, from having such cancellation decreed.

If no election of domicile shall have been made on behalf of such creditor, the notice shall be served upon him either in person, or at his actual, or last known domicile in Seychelles.

Every vendor shall be entitled to commence his action in cancellation whether his claim be due or not.

25. Stay of sale upon vendor's declaration.

If such declaration shall have been filed in due time, the sale shall thereupon be stayed, and the Supreme Court shall, upon the application of the execution creditor or of any other inscribed or judgement creditor, fix a period within which the plaintiff in such action shall be bound to bring his action to trial.

The execution creditor or any inscribed or judgement creditor may intervene in such action.

The said action may, at any time, be entered upon the cause list, and shall thereupon be heard and determined as an urgent case, with precedence over all other cases, upon the cause list, for the hearing of which no special day shall already have been appointed.

26. When sale may take place notwithstanding such action.

In case the action is cancellation shall not have been heard and determined, within the period fixed by section 25, the sale and adjudication of the property shall take place notwithstanding the pendency of such action, unless the Supreme Court, upon good and sufficient cause shown, shall have extended for a further definite period the time previously fixed for the hearing and determining of the said action.

27. Entry of notices in margin of inscription of seizure.

Within eight days after service of the last of the notices prescribed by sections 22, 23 and 24, an entry shall be made in the margin of the transcription of the seizure, to the effect that such notices have been served. From and after the day when such entry shall have been made, the seizure can no longer be erased, except by consent of the seizing creditor, of the sequestrator, if such there be, and of such of the inscribed creditors as shall have lodged oppositions in the hands of the Registrar of Deeds against the erasure of the seizure.

28. Originals of notices and copies of newspapers to be filed.

The originals of the notices prescribed by sections 22, 23 and 24, shall, within fifteen days from the date of entry prescribed by section 27, be filed in the registry and annexed to the memorandum of charges.

29. Reading of memorandum of charges.

The reading of the memorandum of charges shall take place before a Judge at a public sitting to be holden on some day not less than ten nor more than thirty days after the filing of such memorandum of charges. The day for the sale and adjudication shall be fixed by the Judge immediately after the reading of the memorandum of charges, which day shall be at least six weeks after the day of such reading.

30. Change in conditions of sale.

Whenever any inscribed creditor or the execution debtor may desire that the memorandum of charges, as drawn up by the attorney having the carriage of the proceedings, be rectified and amended in any respect, such party may apply by petition to a Judge, twenty one days at the least (unless cause be shown to the satisfaction of the Judge for entertaining such application, if made beyond the above period) previous to the day fixed for the sale, to appoint a day for the appearance of parties before him.

In all cases the execution creditor shall be made a party to such proceedings, as also the execution debtor (unless the application be made by him) and any other parties whom the Judge may in his discretion think proper to join.

Such petition, with the Judge's order thereon, shall be served upon the parties named therein five days previous to the day fixed for hearing, and shall further be made known to creditors by an advertisement in the manner prescribed in section 224 setting forth the desired change and acquainting them that they have the right, if they think fit, of intervening, before the Judge, on the day appointed by him, for the purpose of opposing such rectification or amendment. Any creditors so intervening shall do so, at their own cost, unless in any case where the Judge on dismissing such application, shall condemn the applicant to pay the costs of any intervening parties.

The costs of such application shall be borne by the unsuccessful party, unless it shall be otherwise ordered; and in no case shall they be considered as costs of sale.

31. Notice of day of sale and warning of creditors.

Within fourteen days, after the reading of the memorandum of charges, the attorney in charge of the sale shall publish in the manner prescribed in section 224, a notice as near as may be in form of the schedule hereunto annexed (marked A) announcing the day when the said property shall be put up for sale and adjudication, and calling upon all parties who may have a right to take inscription of legal hypothec upon the property, to exercise such right before the transcription of the title deed of adjudicatee.

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