Debtors (Scotland) Act 1987

• Citation: 1987 c. 18
• Sections: 241

... Inspection of work.

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Section 1 Time to pay directions.

(1) Subject to subsections (3) to (5) below and to section 14 of this Act, on an application by the debtor, the court or the First-tier Tribunal , on granting decree for payment of any principal sum of money , shall, if satisfied that it is reasonable in all the circumstances to do so, and having regard in particular to the matters mentioned in subsection (1A) below, direct that any sum decerned for in the decree (including any interest claimed in pursuance of subsections (6) and (7) below) or any expenses in relation to which the decree contains a finding as to liability or both such sum and such expenses shall be paid—

(a) by such instalments, commencing at such time after the date of intimation by the creditor to the debtor of an extract of the decree containing the direction, payable at such intervals; or

(b) as a lump sum at the end of such period following intimation as mentioned in paragraph (a) above,

as the court or the First-tier Tribunal may specify in the direction.

(1A) The matters referred to in subsection (1) above are—

(a) the nature of and reasons for the debt in relation to which decree is granted;

(b) any action taken by the creditor to assist the debtor in paying that debt;

(c) the debtor's financial position;

(d) the reasonableness of any proposal by the debtor to pay that debt; and

(e) the reasonableness of any refusal by the creditor of, or any objection by the creditor to, any proposal by the debtor to pay that debt.

(2) A direction under subsection (1) above shall be known as a “time to pay direction”.

(3) Where a court or the First-tier Tribunal grants a decree which contains a finding as to liability for expenses but does not at the same time make a time to pay direction, then (whether or not the decree also decerns for payment of the expenses), it shall not at any time thereafter be competent for the court or the First-tier Tribunal to make a time to pay direction in relation to those expenses.

(4) Where a court or the First-tier Tribunal grants a decree which contains a finding as to liability for expenses and makes a time to pay direction in relation to those expenses but—

(a) does not decern for payment of the expenses; or

(b) decerns for payment of the expenses as taxed by the auditor of court or auditor of the Court of Session but does not specify the amount of those expenses,

in relation to so much of the time to pay direction as relates to the expenses, the reference in subsection (1) above to the date of intimation of an extract of the decree containing the direction shall be treated as a reference to the date of intimation of an extract of a decree decerning for payment of the expenses, being an extract specifying their amount.

(5) It shall not be competent for the court or the First-tier Tribunal to make a time to pay direction—

(a) where the sum of money (exclusive of any interest and expenses) decerned for exceeds £10,000 or such amount as may be prescribed in regulations made by the Lord Advocate;

(b) where the decree contains an award of a capital sum on divorce or on the granting of a declarator of nullity of marriage;

(c) in connection with a maintenance order;

(cc) in connection with a liability order within the meaning of the Child Support Act 1991;

(d) in an action by or on behalf of the Commissioners for Her Majesty’s Revenue and Customs for payment of any sum recoverable under or by virtue of any enactment or under a contract settlement ;

(da) in an action by or on behalf of Revenue Scotland for payment of any sum recoverable under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax, under a contract settlement or under a settlement agreement,

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) in an action for payment of—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) car tax due under the Car Tax Act 1983 ;. . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Without prejudice to section 2(5) of this Act, interest payable under a decree containing a time to pay direction (other than interest awarded as a specific sum in the decree) shall not be recoverable by the creditor except in accordance with subsection (7) below.

(7) A creditor who wishes to recover interest to which subsection (6) above applies shall serve a notice on the debtor, not later than the date prescribed by Act of Sederunt or the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 occurring—

(a) in the case of a direction under subsection (1)(a) above, before the date when the last instalment of the debt concerned (other than such interest) is payable under the direction;

(b) in the case of a direction under subsection (1)(b) above, before the end of the period specified in the direction,

stating that he is claiming such interest and specifying the amount of the interest claimed.

(8) Any sum paid by a debtor under a time to pay direction shall not be ascribed to interest claimed in pursuance of subsections (6) and (7) above until the debt concerned (other than such interest) has been discharged.

(8A) In paragraph (d) of subsection (5) above, “ contract settlement ” means an agreement made in connection with any person's liability to make a payment to the Commissioners for Her Majesty's Revenue and Customs under or by virtue of any enactment.

(8B) In paragraph (da) of subsection (5)—

“ contract settlement ” means any agreement made in connection with any person's liability to make a payment to Revenue Scotland under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax,

“ devolved tax ” has the meaning given by section 80A(4) of the Scotland Act 2012 (c. 46),

“ settlement agreement ” has the meaning given by section 246(1) of the Revenue Scotland and Tax Powers Act 2014 (asp 16).

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 2 Effect of time to pay direction on diligence.

(1) While a time to pay direction is in effect, it shall not be competent—

(a) to serve a charge for payment; or

(b) to commence or execute any of the following diligences—

(i) an arrestment and action of furthcoming or sale;

(ii) an attachment;

(iii) an earnings arrestment;

(iv) an adjudication for debt,

(v) a money attachment;

(vi) a land attachment;

(vii) a residual attachment,

to enforce payment of the debt concerned.

(2) While a time to pay direction is in effect an arrestment used on the dependence of the action or in security of the debt concerned shall remain in effect—

(a) if it has not been recalled; and

(b) to the extent that it has not been restricted under subsection (3) below,

but, while the direction is in effect, it shall not be competent to commence an action of furthcoming or sale following on such an arrestment.

(2A) Where the arrestment which remains in effect as mentioned in subsection (2) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the time to pay direction is in effect—

(a) it shall not be competent to release funds under subsection (2) of that section; and

(b) the period during which the direction is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.

(2B) While a time to pay direction is in effect an interim attachment shall remain in effect—

(a) if it has not been recalled; or

(b) to the extent that it has not been restricted under subsection (3) below.

(3) The court or the First-tier Tribunal may, on making a time to pay direction, recall or restrict an interim attachment or an arrestment of the kind described in subsection (2) above.

(4) If an interim attachment or an arrestment of the kind described in subsection (2) above is in effect, the court or the First-tier Tribunal may order that the making of a time to pay direction and the recall or restriction of the interim attachment or arrestment shall be subject to the fulfilment by the debtor of such conditions within such period as the court or the First-tier Tribunal thinks fit; and, where the court or the First-tier Tribunal so orders, it shall postpone granting decree until such fulfilment or the end of that period, whichever is the earlier.

(5) Where a time to pay direction is recalled or ceases to have effect, otherwise than—

(a) under section 12(2)(a) of this Act; or

(b) by reason of the debt concerned being paid or otherwise extinguished,

the debt in so far as it remains outstanding and interest thereon, whether or not awarded as a specific sum in the decree, shall, subject to any enactment or rule of law to the contrary, become enforceable by any diligence mentioned in subsection (1)(b) above.

(5A) Where—

(a) a time to pay direction is recalled or ceases to have effect as mentioned in subsection (5) above; and

(b) an arrestment such as is mentioned in section 73J(1) of this Act is in effect,

the clerk of court , sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall intimate the fact of that recall or cessation to the arrestee.

Section 3 Variation and recall of time to pay direction and arrestment.

(1) The court which granted a decree , or the First-tier Tribunal, where it has made an order, containing a time to pay direction may, on an application by the debtor or the creditor—

(a) vary or recall the direction if it is satisfied that it is reasonable in all the circumstances to do so; or

(b) if an interim attachment or an arrestment in respect of the debt concerned is in effect, recall or restrict the interim attachment or arrestment.

(2) If an interim attachment or an arrestment in respect of the debt concerned is in effect, the court or the First-tier Tribunal may order that any variation, recall or restriction under subsection (1) above shall be subject to the fulfilment by the debtor of such conditions as the court or the First-tier Tribunal thinks fit.

(3) The clerk of court , sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable intimate a variation under subsection (1) above to the debtor and to the creditor, and the variation shall come into effect on the date of such intimation.

Section 4 Lapse of time to pay direction.

(1) If, on the day on which an instalment payable under a time to pay direction becomes due, there remains unpaid a sum, due under previous instalments, of not less than the aggregate of 2 instalments, the direction shall cease to have effect.

(2) If at the end of the period of 3 weeks immediately following the day on which the last instalment payable under a time to pay direction becomes due, any part of the debt concerned remains outstanding, the direction shall cease to have effect.

(3) If any sum payable under a time to pay direction under section 1(1)(b) of this Act remains unpaid 24 hours after the end of the period specified in the direction, the direction shall cease to have effect.

(4) Where—

(a) a decree for payment of a principal sum of money contains a finding as to liability for expenses and decree for payment of the expenses is subsequently granted; and

(b) a time to pay direction is made in relation to both the principal sum and the expenses,

if under subsections (1) to (3) above the direction ceases to have effect in relation to the sum payable under either of the decrees, the direction shall also cease to have effect in relation to the sum payable under the other decree.

Section 5 Time to pay orders.

(1) Subject to section 14 of this Act, this section applies to a debtdue under a decree or other document in respect of which —

(a) a charge for payment has been served on the debtor;

(b) an arrestment has been executed; or

(c) an action of adjudication for debt has been commenced.

(2) Subject to subsections (4) and (5) below, the sheriff or the First-tier Tribunal , on an application by the debtor, shall, if satisfied that it is reasonable in all the circumstances to do so, and having regard in particular to the matters mentioned in subsection (2A) below, make an order that a debt to which this section applies (including any interest claimed in pursuance of subsections (6) and (7) below) so far as outstanding, shall be paid—

(a) by such instalments, commencing at such time after the date of intimation in accordance with section 7(4) of this Act ... to the debtor of the order under this subsection, payable at such intervals; or

(b) as a lump sum at the end of such period following intimation as mentioned in paragraph (a) above,

as the sheriff may specify in the order.

(2A) The matters referred to in subsection (2) above are—

(a) the nature of and reasons for the debt in relation to which the order is sought;

(b) any action taken by the creditor to assist the debtor in paying that debt;

(c) the debtor's financial position;

(d) the reasonableness of any proposal by the debtor to pay that debt; and

(e) the reasonableness of the objection by the creditor to the offer by the debtor to pay that debt.

(3) An order under subsection (2) above shall be known as a “time to pay order”.

(4) It shall not be competent for the sheriff or the First-tier Tribunal to make a time to pay order—

(a) where the amount of the debt outstanding at the date of the making of the application under subsection (2) above (exclusive of any interest) exceeds £10,000 or such amount as may be prescribed in regulations made by the Lord Advocate;

(b) where, in relation to the debt, a time to pay direction or a time to pay order has previously been made (whether such direction or order is in effect or not);

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) in relation to a debt including any sum recoverable by or on behalf of the Commissioners for Her Majesty’s Revenue and Customs under or by virtue of any enactment or under a contract settlement ;

(da) in relation to a debt including any sum recoverable by or on behalf of Revenue Scotland under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax, under a contract settlement or under a settlement agreement,

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) in relation to a debt including—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) car tax due under the Car Tax Act 1983; . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where in respect of a debt to which this section applies—

(a) there has been a poinding of articles belonging to the debtor and a warrant of sale has been granted in respect of them but has not been executed;

articles belonging to the debtor have been attached and notice of an auction given under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) but no auction has yet taken place;

(aa) money owned by the debtor has been attached and removed;

(b) moveable property of the debtor has been arrested and in respect of the arrested property—

(i) a decree in an action of furthcoming has been granted but has not been enforced; or

(ii) a warrant of sale has been granted but the warrant has not been executed; or

(c) a decree in an action of adjudication for debt has been granted and the creditor has, with the debtor’s consent or acquiescence, entered into possession of any property adjudged by the decree or has obtained a decree of maills and duties, or a decree of removing or ejection, in relation to any such property,

land owned by the debtor has been attached and an order under section 97(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this Part, the “2007 Act”) granting warrant for sale of the land has been made but that warrant has not yet been executed; or

(d) property owned by the debtor has been attached by residual attachment and a satisfaction order under section 136(2) of the 2007 Act has been made but not yet executed,

it shall not be competent for the sheriff or the First-tier Tribunal to make a time to pay order in respect of that debt until the diligence has been completed or has otherwise ceased to have effect.

(5A) Where, in respect of a debt to which this section applies, an arrestment such as is mentioned in subsection (1) of section 73J of this Act has been executed, the sheriff or the First-tier Tribunal may make a time to pay order in respect of that debt only if less than 8 weeks of the period mentioned in subsection (3) of that section have expired.

(6) Without prejudice to section 9(12) of this Act, interest payable under a decree for payment of a debt in respect of which a time to pay order has been made (other than interest awarded as a specific sum in the decree) shall not be recoverable by the creditor except in accordance with subsection (7) below.

(7) A creditor who wishes to recover interest to which subsection (6) above applies shall serve a notice on the debtor not later than the date prescribed by Act of Sederunt or by rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014 occurring—

(a) in the case of an order under subsection (2)(a) above, before the date when the last instalment of the debt (other than such interest) is payable under the order;

(b) in the case of an order under subsection (2)(b) above, before the end of the period specified in the order,

stating that he is claiming such interest and specifying the amount of the interest claimed.

(8) Any sum paid by a debtor under a time to pay order shall not be ascribed to interest claimed in pursuance of subsections (6) and (7) above until the debt concerned (other than such interest) has been discharged.

(8A) In paragraph (d) of subsection (4) above, “ contract settlement ” means an agreement made in connection with any person's liability to make a payment to the Commissioners for Her Majesty's Revenue and Customs under or by virtue of any enactment.

(8B) In paragraph (da) of subsection (4)—

“ contract settlement ” means any agreement made in connection with any person's liability to make a payment to Revenue Scotland under or by virtue of the Revenue Scotland and Tax Powers Act 2014 (asp 16) or any other enactment in respect of a devolved tax,

“ devolved tax ” has the meaning given by section 80A(4) of the Scotland Act 2012 (c. 46),

“ settlement agreement ” has the meaning given by section 246(1) of the Revenue Scotland and Tax Powers Act 2014 (asp 16).

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 6 Application for time to pay order.

(1) An application for a time to pay order shall specify, to the best of the debtor’s knowledge, the amount of the debt outstanding as at the date of the making of the application and shall include an offer to pay it—

(a) by specified instalments, payable at specified intervals; or

(b) as a lump sum at the end of a specified period.

(2) The ... duty under section 96(2)(b) of this Act on the sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal to assist the debtor in the completion of certain forms shall, in relation to a form of application for a time to pay order, consist of a duty to assist him in the completion of the form in accordance with proposals for payment made by the debtor.

(3) On receipt of an application for a time to pay order, the sheriff or the First-tier Tribunal shall, if the application is properly made and unless it appears ...that the making of a time to pay order would not be competent, make an interim order sisting diligence as provided for in section 8(1) of this Act.

(4) The sheriff may or the First-tier Tribunal , where the debtor is unable to furnish the necessary information, make an order requiring the creditor, within such period as may be specified therein, to furnish to the sheriff or the First-tier Tribunal such particulars of the decree or other document under which the debt is payable as may be prescribed by Act of Sederunt or rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014 .

(5) If a creditor fails to comply with an order under subsection (4) above the sheriff or the First-tier Tribunal may, after giving the creditor an opportunity to make representations, make an order recalling or extinguishing any existing diligence, and interdicting the creditor from executing diligence, for the recovery of the debt.

(6) Where the sheriff or the First-tier Tribunal makes an interim order under subsection (3) above, the sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable—

(a) serve a copy of the application for the time to pay order on the creditor informing him that he may object to the granting of the application within a period of 14 days after the date of service;

(b) serve on—

(i) the creditor; and

(ii) where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee,

a copy of the interim order; and

(c) serve on the creditor a copy of any order under subsection (4) above.

Section 7 Disposal of application.

(1) If no objection is made in pursuance of section 6(6)(a) of this Act, the sheriff or the First-tier Tribunal shall make a time to pay order in accordance with the application.

(2) If such an objection is made, the sheriff or the First-tier Tribunal shall not dispose of the application without first—

(a) giving the debtor an opportunity to make representations; and

(b) if agreement is not reached as to whether a time to pay order should be made or as to its terms, giving the parties an opportunity to be heard.

(3) Where the sheriff or the First-tier Tribunal refuses to make a time to pay order, he shall recall any interim order under section 6(3) of this Act.

(4) The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable—

(a) intimate the decision of the sheriff or the First-tier Tribunal on an application for a time to pay order (including any recall of an interim order under subsection (3) above) to the debtor , the creditor and, where an arrestment such as is mentioned in section 73J(1) of this Act is in effect, the arrestee ; and

(b) if the sheriff or the First-tier Tribunal has made a time to pay order, inform the creditor of the date when he intimated that fact to the debtor.

Section 8 Effect of interim order on diligence.

(1) While an interim order under section 6(3) of this Act is in effect it shall not be competent in respect of the debt—

(za) to attach in execution of the decree any articles which have been attached by interim attachment;

(a) to give, in relation to any articles which have been attached, notice of an auction under section 27(4) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) ;

(aa) to execute a money attachment;

(b) to execute an earnings arrestment;

(c) subject to subsection (1A) below, where an arrestment of property belonging to the debtor (other than an arrestment of earnings in the hands of his employer) has been executed before or after the making of the interim order, to commence an action of furthcoming or sale, or to grant decree in any such action which has already been commenced, in pursuance of that arrestment;

(d) to commence an action of adjudication for debt or, if such an action has already been commenced, to take any steps other than the registration of a notice of litigiosity in connection with the action, the obtaining and extracting of a decree in the action, the registration of an abbreviate of adjudication and the completion of title to property adjudged by the decree.

(1A) Where the arrestment mentioned in subsection (1)(c) above is an arrestment such as is mentioned in subsection (1) of section 73J of this Act, while the interim order is in effect—

(a) it shall not be competent to release funds under subsection (2) of that section; and

(b) the period during which the order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.

(1B) Where, before the interim order is made—

(a) a notice of land attachment is registered, it shall not be competent to take any steps other than—

(i) serving, under subsection (5) of section 83 of the 2007 Act, a copy of that notice; and

(ii) registering, under subsection (6) of that section, a certificate of service; or

(b) a land attachment is created, it shall not be competent to make, under section 97(2) of the 2007 Act, an order granting a warrant for sale of the attached land.

(1C) Where, before the interim order is made, a residual attachment order has been made, it shall not be competent—

(a) to take any steps other than serving, under section 133(1) of the 2007 Act, a schedule of residual attachment; or

(b) to make, under section 136(2) of the 2007 Act, a satisfaction order.

(2) An interim order under section 6(3) of this Act shall come into effect on intimation to the creditor under section 6(6)(b) of this Act and shall remain in effect until intimation of the sheriff’s or the First-tier Tribunal’s decision on the application for a time to pay order is made to the debtor and the creditor under section 7(4)(a) of this Act.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 9 Effect of time to pay order on diligence.

(1) While a time to pay order is in effect, it shall not be competent—

(a) to serve a charge for payment; or

(b) to commence or execute any of the following diligences—

(i) an arrestment and action of furthcoming or sale;

(ii) an attachment;

(iii) an earnings arrestment;

(iv) an adjudication for debt,

(v) a money attachment;

(vi) a land attachment;

(vii) a residual attachment,

to enforce payment of the debt concerned.

(2) On making a time to pay order, the sheriff in respect of the debt—

(a) shall make an order recalling any existing earnings arrestment;

(b) where the debt is being enforced by a conjoined arrestment order, shall—

(i) if he, or another sheriff sitting in the same sheriff court, made the conjoined arrestment order, vary it so as to exclude the debt or, where no other debt or maintenance is being enforced by the order, recall the order;

(ii) if a sheriff sitting in another sheriff court made the conjoined arrestment order, require intimation of the time to pay order to be made to a sheriff sitting there who shall so vary or, as the case may be, recall the conjoined arrestment order;

(c) where an action of adjudication for debt has been commenced, shall make an order prohibiting the taking of any steps other than the registration of a notice of litigiosity in connection with the action, the obtaining and extracting of a decree in the action, the registration of an abbreviate of adjudication and the completion of title to property adjudged by the decree;

where a notice of land attachment has been registered under section 83(1)(c) of the 2007 Act, shall make an order prohibiting the taking of any steps other than—

(i) the serving, under subsection (5) of that section, of a copy of the notice; and

(ii) the registration, under subsection (6) of that section, of a certificate of service;

(ca) where a residual attachment order has been made under section 132(2) of the 2007 Act, shall make an order prohibiting the taking of any steps other than the serving, under section 133(1) of the 2007 Act, of a schedule of residual attachment;

(cb) may make an order recalling an interim attachment;

(d) may make an order recalling an attachment ;

(e) may make an order recalling or restricting any arrestment other than an arrestment of the debtor’s earnings in the hands of his employer.

(2A) On making a time to pay order, the First-tier Tribunal in respect of the debt—

(a) must make an order recalling any existing earnings arrestment,

(b) where the debt is being enforced by a conjoined arrestment order, must—

(i) if the First-tier Tribunal Housing and Property Chamber made the conjoined arrestment order, vary it so as to exclude the debt or, where no other debt or maintenance is being enforced by the order, recall the order,

(ii) if either—

(aa) another Chamber of the First-tier Tribunal, or

(bb) a sheriff sitting in the sheriff court,

made the conjoined arrestment order, require intimation of the time to pay order to be made to the other Chamber or to the sheriff who must so vary or, as the case may be, recall the conjoined arrestment order,

(c) where a notice of land attachment has been registered under section 83(1)(c) of the 2007 Act, must make an order prohibiting the taking of any steps other than—

(i) the serving, under subsection (5) of that section, of a copy of the notice, and

(ii) the registration, under subsection (6) of that section, of a certificate of service,

(d) where a residual attachment order has been made under section 132(2) of the 2007 Act, must make an order prohibiting the taking of any steps other than the serving, under section 133(1) of the 2007 Act, of a schedule of residual attachment,

(e) may make an order recalling an interim attachment,

(f) may make an order recalling an attachment,

(g) may make an order recalling or restricting any arrestment other than an arrestment of the debtor’s earnings in the hands of the debtor’s employer.

(3) If an interim attachment, an attachment or such an arrestment as is mentioned in subsection (2)(e) above is in effect, the sheriff or the First-tier Tribunal may order that the making of a time to pay order , the recall of the interim attachment or the attachment or the recall or restriction of the arrestment shall be subject to the fulfilment by the debtor of such conditions as the sheriff or the First-tier Tribunal thinks fit.

(4) Subject to subsection (4A) below, where the sheriff or the First-tier Tribunal does not exercise the powers conferred ... by subsection (2)(cb), (d) or (e) above to recall a diligence, the sheriff or the First-tier Tribunal shall order that no further steps shall be taken by the creditor in the diligence concerned other than, in the case of an attachment, making a report of attachment under section 17 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) or applying for an order under section 20(1) of that Act.

(4A) Where, in relation to an arrestment such as is mentioned in subsection (1) of section 73J of this Act, the sheriff or the First-tier Tribunal does not exercise the power conferred ... by subsection (2)(e) above to recall that arrestment, the sheriff or that tribunal shall make an order—

(a) prohibiting, while the time to pay order is in effect, the release of funds under subsection (2) of section 73J of this Act; and

(b) providing that the period during which the time to pay order is in effect shall be disregarded for the purposes of determining whether the period mentioned in subsection (3) of that section has expired.

(5) Any order made under subsection (2) or (4) above shall specify the diligence in relation to which it is made.

(6) The sheriff or the First-tier Tribunal shall not make an order under subsection (2)(cb), (d) or (e) above without first giving the creditor an opportunity to make representations.

(7) The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall, at the same time as intimation is made under section 7(4)(a) of this Act—

(a) intimate any order under subsection (2) or (4) above to the debtor and the creditor and the order shall come into effect on such intimation being made to the creditor;

(b) intimate any order under subsection (2)(a) or (b) above to the employer ; and

(c) where any order under subsection (4A) above is made in relation to an arrestment such as is mentioned in section 73J(1) of this Act is in effect, intimate that order to the arrestee.

(8) While an order under subsection (4) above is in effect it shall not be competent ...—

(a) to sell articles which have been attached (other than by virtue of section 20(1) or 22(3) of the Debt Arrangement and Attachment (Scotland) Act (asp 17);

(b) to grant a decree of furthcoming or sale of arrested property.

(9) For the purposes of section 24 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) , the period during which an order under subsection (4) above is in effect shall be disregarded in calculating the period during which an attachment to which the order applies remains in effect.

(10) Where, before the making of a time to pay order in respect of a debt, a charge to pay that debt has been served—

(a) if the period for payment specified in the charge has not expired, the charge shall lapse on the making of the order;

(b) if that period has expired, nothing in the time to pay order nor in any order under this section shall affect retrospectively the effect of the charge in the constitution of apparent insolvency within the meaning of section 16 of the Bankruptcy (Scotland) Act 2016 .

(11) If, when a time to pay order in relation to a debt is made, any diligence enforcing it is in effect which is not specified in an order under subsection (2) or (4) above, the diligence shall remain in effect unless and until it is recalled under section 10(4) of this Act.

(12) Where a time to pay order is recalled or ceases to have effect, otherwise than—

(a) under section 12(2)(a) of this Act; or

(b) by the debt payable under the order being paid or otherwise extinguished,

the debt in so far as it remains outstanding (including interest thereon, whether or not awarded as a specific sum in the decree) shall, subject to any enactment or rule of law to the contrary, become enforceable by any diligence mentioned in subsection (1)(b) above; and, notwithstanding section 25 of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) , in this subsection “ diligence ” includes, where the debt was, immediately before the time to pay order was made, being enforced by an attachment in any premises, another attachment in those premises.

Section 10 Variation and recall of time to pay order and arrestment.

(1) The sheriff or the First-tier Tribunal may, on an application by the debtor or the creditor—

(a) vary or recall a time to pay order if the sheriff or the Tribunal is satisfied that it is reasonable in all the circumstances to do so; or

(b) if an interim attachment, an attachment or an arrestment in respect of the debt is in effect, recall the attachment or recall or restrict the arrestment.

(2) If an interim attachment, an attachment or an arrestment in respect of the debt is in effect, the sheriff or the First-tier Tribunal may order that any variation, recall or restriction under subsection (1) above shall be subject to the fulfilment by the debtor of such conditions as the sheriff or the First-tier Tribunal thinks fit.

(3) The sheriff clerk or, in relation to time to pay directions made by the First-tier Tribunal, a member of administration staff of the First-tier Tribunal shall as soon as is reasonably practicable intimate a variation under subsection (1) above to the debtor and to the creditor, and the variation shall come into effect on the date of such intimation.

(4) Where, after a time to pay order has been made, it comes to the knowledge of the sheriff or the First-tier Tribunal that the debt to which the order applies is being enforced by any of the diligences mentioned in section 9(1)(b) of this Act which was in effect when the time to pay order was made, the sheriff or the First-tier Tribunal , after giving all interested parties an opportunity to be heard, may make—

(a) an order recalling the time to pay order; or

(b) any of the orders mentioned in subsection (2) or (4) of section 9 of this Act; and that section shall, subject to any necessary modifications, apply for the purposes of an order made under this paragraph as it applies for the purposes of an order made under either of those subsections.

Section 11 Lapse of time to pay order.

(1) If, on the day on which an instalment payable under a time to pay order becomes due, there remains unpaid a sum, due under previous instalments, of not less than the aggregate of 2 instalments, the order shall cease to have effect.

(2) If at the end of the period of 3 weeks immediately following the day on which the last instalment payable under a time to pay order becomes due, any part of the debt payable under the order remains outstanding, the order shall cease to have effect.

(3) If any sum payable under a time to pay order under section 5(2)(b) of this Act remains unpaid 24 hours after the end of the period specified in the order, the order shall cease to have effect.

Section 12 Sequestration and insolvency.

(1) While a time to pay direction or a time to pay order is in effect, the creditor shall not be entitled to found on the debt concerned in presenting, or in concurring in the presentation of, a petition for the sequestration of the debtor’s estate.

(2) A time to pay direction or a time to pay order shall cease to have effect—

(a) on the granting of an award of sequestration of the debtor’s estate;

(b) on the granting by the debtor of a voluntary trust deed whereby his estate is conveyed to a trustee for the benefit of his creditors generally; or

(c) on the entering by the debtor into a composition contract with his creditors.

Section 13 Saving of creditor’s rights and remedies.

(1) No right or remedy of a creditor to enforce his debt shall be affected by—

(a) a time to pay direction;

(b) a time to pay order; or

(c) an interim order under section 6(3) of this Act,

except as expressly provided in this Part of this Act.

(2) The recall—

(a) on the making of a time to pay direction or an order under section 3(1) of this Act, of an arrestment; or

(b) on the making of a time to pay order or an order under section 10(1) of this Act, of an arrestment or an attachment ,

shall not prevent the creditor therein from being ranked by virtue of that arrestment or attachment pari passu under paragraph 1 of schedule 7 of the Bankruptcy (Scotland) Act 2016 on the proceeds of any other arrestment or attachment .

Section 14 Circumstances where direction or order not competent or no longer effective.

(1) It shall be competent to make a time to pay direction or a time to pay order only in relation to a debtor who is an individual and only if, and to the extent that, the debtor is liable for payment of the debt concerned in either or both of the following capacities—

(a) personally;

(b) as a tutor of an individual or as a judicial factor loco tutoris, curator bonis or judicial factor loco absentis on an individual’s estate.

(2) A time to pay direction or a time to pay order shall cease to have effect on the death of the debtor or on the transmission of the obligation to pay the debt concerned during his lifetime to another person.

(3) Where a time order for the payment by instalments of a sum owed under a regulated agreement or a security has been made under section 129(2)(a) of the Consumer Credit Act 1974 it shall not thereafter be competent to make a time to pay direction or a time to pay order in relation to that sum.

Section 15 Interpretation of Part I.

(1) In this Part of this Act—

“2007 Act” means the Bankruptcy and Diligence etc. (Scotland) Act 2007 ,

“ adjudication for debt ” does not include—

an adjudication on a debitum fundi; ...

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“the First-tier Tribunal” means the First-tier Tribunal for Scotland Housing and Property Chamber.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In sections 1 to 4 of this Act—

“ the court ” means the Court of Session or the sheriff;

“ the debt concerned ” means the sum or expenses in respect of which a time to pay direction is made.

“decree”, where the context requires or permits, includes an order made by the First-tier Tribunal.

(3) In sections 5 to 14 of this Act—

“ debt ” means the sum due by a debtor under a decree or other document (including any interest thereon and any expenses decerned for), and any expenses of diligence used to recover such sum which are chargeable against the debtor, but does not include—

any sum due under an order of court in criminal proceedings;

maintenance, whether due at the date of application for the time to pay order or not, or any capital sum awarded on divorce or on the granting of a declarator of nullity of marriage or any other sum due under a decree awarding maintenance or such a capital sum; or

any fine imposed—

for contempt of court;

under any enactment, for professional misconduct; or

for failure to implement an order under section 91 of the Court of Session Act 1868 (orders for specific performance of statutory duty);

“ decree or other document ” means—

a decree of the Court of Session or the sheriff;

a summary warrant;

an extract of a document which is registered for execution in the Books of Council and Session or the sheriff court books;

an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff;

a civil judgment granted outside Scotland by a court, tribunal or arbiter which by virtue of any enactment or rule of law is enforceable in Scotland; and

a document or settlement which by virtue of an Order in Council made under section 13 of the Civil Jurisdiction and Judgments Act 1982 is enforceable in Scotland,

but does not include a maintenance order , a liability order within the meaning of the Child Support Act 1991 ...;

“ sheriff ”—

in relation to a debt constituted by decree granted by a sheriff, means that sheriff or another sheriff sitting in the same sheriff court;

in any other case, means the sheriff having jurisdiction—

in the place where the debtor is domiciled;

if the debtor is not domiciled in Scotland, in a place in Scotland where he carries on business; or

if the debtor does not carry on business in Scotland, in a place where he has property which is not exempt from diligence;

and, for the purposes of sub-paragraphs (i) and (ii) above, the debtor’s domicile shall be determined in accordance with section 41 of the Civil Jurisdiction and Judgments Act 1982.

Section 15A Diligence on the dependence of action

(1) Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session or the sheriff may grant warrant for diligence by—

(a) arrestment; or

(b) inhibition,

on the dependence of an action.

(2) Warrant for—

(a) arrestment on the dependence of an action is competent only where the action contains a conclusion for payment of a sum other than by way of expenses; and

(b) inhibition on the dependence is competent only where the action contains—

(i) such a conclusion; or

(ii) a conclusion for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.

(3) In this Part of this Act, “ action ” includes, in the sheriff court—

(a) a summary cause;

(b) a simple procedure case (within the meaning of section 72(9) of the Courts Reform (Scotland) Act 2014); and

(c) a summary application,

and references to “summons”, “conclusion” and to cognate expressions shall be construed accordingly.

Section 15B Diligence on the dependence of petition

(1) Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session may grant warrant for diligence by—

(a) arrestment; or

(b) inhibition,

on the dependence of a petition.

(2) Warrant for—

(a) arrestment on the dependence of a petition is competent only where the petition contains a prayer for payment of a sum other than by way of expenses; and

(b) inhibition on the dependence is competent only where the petition contains—

(i) such a prayer; or

(ii) a prayer for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.

(3) The provisions of this Act (other than section 15A), of any other enactment and of any rule of law relating to diligence on the dependence of actions shall, in so far as is practicable and unless the contrary intention appears, apply to petitions in relation to which it is competent to grant warrant for such diligence and to the parties to them as they apply to actions and to parties to them.

Section 15C Diligence on the dependence to secure future or contingent debts

(1) It shall be competent for the court to grant warrant for diligence on the dependence where the sum concluded for is a future or contingent debt.

(2) In this section and in sections 15D to 15M of this Act, the “ court ” means the court before which the action is depending.

Section 15D Application for diligence on the dependence

(1) A creditor may, at any time during which an action is in dependence, apply to the court for warrant for diligence by—

(a) arrestment; or

(b) inhibition,

on the dependence of the action.

(2) An application under subsection (1) above shall—

(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b) subject to subsection (3) below, be intimated to and provide details of—

(i) the debtor; and

(ii) any other person having an interest;

(c) state whether the creditor is seeking the grant, under section 15E(1) of this Act, of warrant for diligence on the dependence in advance of a hearing on the application under section 15F of this Act; and

(d) contain such other information as the Scottish Ministers may by regulations prescribe.

(3) An application under subsection (1) above need not be intimated where the creditor is seeking the grant, under section 15E(1) of this Act, of warrant in advance of a hearing on the application under section 15F of this Act.

(4) The court, on receiving an application under subsection (1) above, shall—

(a) subject to section 15E of this Act, fix a date for a hearing on the application under section 15F of this Act; and

(b) order the creditor to intimate that date to—

(i) the debtor; and

(ii) any other person appearing to the court to have an interest.

Section 15E Grant of warrant without a hearing

(1) The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act.

(2) The matters referred to in subsection (1) above are—

(a) that the creditor has a prima facie case on the merits of the action;

(b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i) the debtor being insolvent or verging on insolvency; or

(ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,

were warrant for diligence on the dependence not granted in advance of such a hearing; and

(c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so.

(3) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.

(4) Where the court makes an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act, the court shall—

(a) fix a date for a hearing under section 15K of this Act; and

(b) order the creditor to intimate that date to—

(i) the debtor; and

(ii) any other person appearing to the court to have an interest.

(5) Where a hearing is fixed under subsection (4)(a) above, section 15K of this Act shall apply as if an application had been made to the court for an order under that section.

(6) Where the court refuses to make an order granting a warrant without a hearing under section 15F of this Act and the creditor insists in the application, the court shall—

(a) fix a date for such a hearing on the application; and

(b) order the creditor to intimate that date to—

(i) the debtor; and

(ii) any other person appearing to the court to have an interest.

Section 15F Hearing on application

(1) At the hearing on an application for warrant for diligence on the dependence, the court shall not make any order without first giving—

(a) any person to whom intimation of the date of the hearing was made; and

(b) any other person the court is satisfied has an interest,

an opportunity to be heard.

(2) The court may, if satisfied as to the matters mentioned in subsection (3) below, make an order granting warrant for diligence on the dependence.

(3) The matters referred to in subsection (2) above are—

(a) that the creditor has a prima facie case on the merits of the action;

(b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i) the debtor being insolvent or verging on insolvency; or

(ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,

were warrant for diligence on the dependence not granted; ...

(c) that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so ; and

(d) where the debtor is an individual, that the creditor has provided the debtor with a debt advice and information package.

(4) The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.

(5) Where the court makes an order granting or, as the case may be, refusing warrant for diligence on the dependence, the court shall order the creditor to intimate that order to—

(a) the debtor; and

(b) any other person appearing to the court to have an interest.

(6) Where the court makes an order refusing warrant for diligence on the dependence, the court may impose such conditions (if any) as it thinks fit.

(7) Without prejudice to the generality of subsection (6) above, those conditions may require the debtor—

(a) to consign into court such sum; or

(b) to find caution or to give such other security,

as the court thinks fit.

(8) In this section and in section 15K, “ debt advice and information package ” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002.

Section 15G Execution of diligence before service of summons

(1) This section applies where diligence by—

(a) arrestment; or

(b) inhibition,

on the dependence of an action is executed before service of the summons on the debtor.

(2) Subject to subsection (3) below, if the summons is not served on the debtor before the end of the period of 21 days beginning with the day on which the diligence is executed, the diligence shall cease to have effect.

(3) The court may, on the application of the creditor, make an order extending the period referred to in subsection (2) above.

(4) In determining whether to make such an order the court shall have regard to—

(a) the efforts of the creditor to serve the summons within the period of 21 days; and

(b) any special circumstances preventing or obstructing service within that period.

Section 15H Sum attached by arrestment on dependence

(1) The court may, subject to subsection (2) below, when granting warrant for arrestment on the dependence, limit the sum which may be attached to funds not exceeding such amount as the court may specify.

(2) The maximum amount which the court may specify under subsection (1) above shall be the aggregate of—

(a) the principal sum concluded for;

(b) a sum equal to 20 per cent of that sum or such other percentage as the Scottish Ministers may, by regulations, prescribe;

(c) a sum equal to 1 year's interest on the principal sum at the judicial rate; and

(d) any sum prescribed under subsection (3) below.

(3) The Scottish Ministers may, by regulations, prescribe a sum which appears to them to be reasonable having regard to the expenses likely to be—

(a) incurred by a creditor; and

(b) chargeable against a debtor,

in executing an arrestment on the dependence.

(4) For the avoidance of doubt, section 73F of this Act applies to any sum attached under this section.

Section 15J Property affected by inhibition on dependence

Where the court grants warrant for diligence by inhibition on the dependence—

(a) in a case where the action is brought for specific implement of an obligation—

(i) to convey heritable property to the creditor;

(ii) to grant in the creditor's favour a real right in security over such property; or

(iii) to grant some other right over such property,

the court shall limit the property inhibited to that particular property; and

(b) in any other case, the court may limit the property inhibited to such property as the court may specify.

Section 15K Recall or restriction of diligence on dependence

(1) This section applies where warrant is granted for diligence on the dependence.

(2) The debtor and any person having an interest may apply to the court for an order—

(a) recalling the warrant;

(b) restricting the warrant;

(c) if an arrestment or inhibition has been executed in pursuance of the warrant—

(i) recalling; or

(ii) restricting,

that arrestment or inhibition;

(d) determining any question relating to the validity, effect or operation of the warrant; or

(e) ancillary to any order mentioned in paragraphs (a) to (d) above.

(3) An application under subsection (2) above shall—

(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b) be intimated to—

(i) the creditor; and

(ii) any other person having an interest.

(4) At the hearing on the application under subsection (2) above, the court shall not make any order without first giving—

(a) any person to whom intimation of the application was made; and

(b) any other person the court is satisfied has an interest,

an opportunity to be heard.

(5) Where the court is satisfied that the warrant is invalid it—

(a) shall make an order—

(i) recalling the warrant; and

(ii) if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition; and

(b) may make an order ancillary to any order mentioned in paragraph (a) above.

(5A) Where subsection (5B) applies and the court is satisfied that the creditor has not provided the debtor with a debt advice and information package it—

(a) must make an order—

(i) recalling the warrant, and

(ii) if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition, and

(b) may make an order ancillary to any order mentioned in paragraph (a).

(5B) This subsection applies where—

(a) the debtor is an individual, and

(b) the hearing is a hearing fixed under section 15E(4)(a).

(6) Where the court is satisfied that an arrestment or inhibition executed in pursuance of the warrant is incompetent, it—

(a) shall make an order recalling that arrestment or inhibition; and

(b) may make an order ancillary to any such order.

(7) Subject to subsection (8) below, where the court is satisfied that the warrant is valid but that—

(a) an arrestment or inhibition executed in pursuance of it is irregular or ineffective; or

(b) it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, to do so,

the court may make any order such as is mentioned in subsection (2) above.

(8) If no longer satisfied as to the matters mentioned in subsection (9) below, the court—

(a) shall make an order such as is mentioned in subsection (5)(a) above; and

(b) may make an order such as is mentioned in subsection (5)(b) above.

(9) The matters referred to in subsection (8) above are—

(a) that the creditor has a prima facie case on the merits of the action;

(b) that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i) the debtor being insolvent or verging on insolvency; or

(ii) the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets; and

(c) that it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, for the warrant or, as the case may be, any arrestment or inhibition executed in pursuance of it to continue to have effect.

(10) The onus shall be on the creditor to satisfy the court that no order under subsection (5), (5A), (6), (7) or (8) above should be made.

(11) In granting an application under subsection (2) above, the court may impose such conditions (if any) as it thinks fit.

(12) Without prejudice to the generality of subsection (11) above, the court may impose conditions which require the debtor—

(a) to consign into court such sum; or

(b) to find such caution or to give such other security,

as the court thinks fit.

(13) Where the court makes an order under this section, the court shall order the debtor to intimate that order to—

(a) the creditor; and

(b) any other person appearing to the court to have an interest.

(14) This section applies irrespective of whether warrant for diligence on the dependence is obtained, or executed, before this section comes into force.

Section 15L Variation of orders and variation or recall of conditions

(1) Where—

(a) an order restricting warrant for diligence on the dependence is made under section 15K(7); or

(b) a condition is imposed by virtue of—

(i) section 15F(6); or

(ii) section 15K(11),

of this Act, the debtor may apply to the court for variation of the order or, as the case may be, variation or removal of the condition.

(2) An application under subsection (1) above shall—

(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b) be intimated to—

(i) the creditor; and

(ii) any other person having an interest.

(3) At the hearing on the application under subsection (1) above, the court shall not make any order without first giving—

(a) any person to whom intimation of the application was made; and

(b) any other person the court is satisfied has an interest,

an opportunity to be heard.

(4) On an application under subsection (1) above, the court may if it thinks fit—

(a) vary the order; or

(b) vary or remove the condition.

(5) Where the court makes an order varying the order or, as the case may be, varying or removing the condition, the court shall order the debtor to intimate that order to—

(a) the creditor; and

(b) any other person appearing to the court to have an interest.

Section 15M Expenses of diligence on the dependence

(1) Subject to subsection (3)(a) below, a creditor shall be entitled to such expenses as the creditor incurs—

(a) in obtaining warrant for diligence on the dependence; and

(b) where an arrestment or inhibition is executed in pursuance of the warrant, in so executing the arrestment or inhibition.

(2) Subject to subsection (3)(b) below, a debtor shall be entitled, where—

(a) warrant for diligence on the dependence is granted; and

(b) the court is satisfied that the creditor was acting unreasonably in applying for it,

to the expenses incurred in opposing that warrant.

(3) The court may modify or refuse—

(a) such expenses as are mentioned in subsection (1) above if it is satisfied that—

(i) the creditor was acting unreasonably in applying for the warrant; or

(ii) such modification or refusal is reasonable in all the circumstances and having regard to the outcome of the action; and

(b) such expenses as are mentioned in subsection (2) above if it is satisfied as to the matter mentioned in paragraph (a)(ii) above.

(4) Subject to subsections (1) to (3) above, the court may make such finding as it thinks fit in relation to such expenses as are mentioned in subsections (1) and (2) above.

(5) Expenses incurred as mentioned in subsection (1) and (2) above in obtaining or, as the case may be, opposing an application for warrant shall be expenses of process.

(6) Subsections (1) to (5) above are without prejudice to any enactment or rule of law as to the recovery of expenses chargeable against a debtor as are incurred in executing an arrestment or inhibition on the dependence of an action.

Section 15N Application of this Part to admiralty actions

This Part of this Act (other than sections 15H, 15J and 15M) shall apply, in so far as not inconsistent with the provisions of Part V of the Administration of Justice Act 1956 (c. 46) (admiralty jurisdiction and arrestment of ships), to an arrestment on the dependence of an admiralty action as it applies to any other arrestment on the dependence.

Section 16 Articles exempt from poinding.

(1) The following articles belonging to a debtor shall be exempt from poinding at the instance of a creditor in respect of a debt due to him by the debtor—

(a) clothing reasonably required for the use of the debtor or any member of his household;

(b) implements, tools of trade, books or other equipment reasonably required for the use of the debtor or any member of his household in the practice of the debtor’s or such member’s profession, trade or business, not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;

(c) medical aids or medical equipment reasonably required for the use of the debtor or any member of his household;

(d) books or other articles reasonably required for the education or training of the debtor or any member of his household not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;

(e) toys for the use of any child who is a member of the debtor’s household;

(f) articles reasonably required for the care or upbringing of a child who is a member of the debtor’s household.

(2) The following articles belonging to a debtor shall be exempt from poinding if they are at the time of the poinding in a dwellinghouse and are reasonably required for the use in the dwellinghouse of the person residing there or a member of his household—

(a) beds or bedding;

(b) household linen;

(c) chairs or settees;

(d) tables;

(e) food;

(f) lights or light fittings;

(g) heating appliances;

(h) curtains;

(j) floor coverings;

(k) furniture, equipment or utensils used for cooking, storing or eating food;

(l) refrigerators;

(m) articles used for cleaning, mending, or pressing clothes;

(n) articles used for cleaning the dwellinghouse;

(o) furniture used for storing—

(i) clothing, bedding or household linen;

(ii) articles used for cleaning the dwellinghouse; or

(iii) utensils used for cooking or eating food;

(p) articles used for safety in the dwellinghouse;

(q) tools used for maintenance or repair of the dwellinghouse or of household articles.

(r) computers and accessory equipment;

(s) microwave ovens;

(t) radios;

(u) telephones;

(v) televisions.

(3) The Lord Advocate may by regulations add to the list set out in subsection (2) above, or delete or vary any of the items contained in that list.

(4) If, on an application made within 14 days after the date of the execution of the poinding—

(a) by the debtor or any person who owns a poinded article in common with the debtor; or

(b) by any person in possession of a poinded article,

the sheriff is satisfied that the article is exempt from poinding under this section, he shall make an order releasing the article from the poinding.

Section 17 Restrictions on times when poinding may be executed.

(1) No poinding shall be executed on Sunday, Christmas Day, New Year’s Day, Good Friday or such other day as may be prescribed by Act of Sederunt.

(2) The execution of a poinding shall not—

(a) be commenced before 8 a.m. or after 8 p.m.; or

(b) be continued after 8 p.m.,

unless the officer of court has obtained prior authority from the sheriff for such commencement or continuation; and any rule of law which prohibits poindings outwith the hours of daylight shall cease to have effect.

Section 18 Power of entry for execution of poinding.

(1) Subject to subsection (2) below, notwithstanding any warrant authorising him to open shut and lockfast places, an officer of court shall not enter a dwellinghouse to execute a poinding if, at the time of his intended entry, there appears to him to be nobody, or only children under the age of 16 years, present there unless, at least 4 days before the date of his intended entry, he has served notice on the debtor specifying that date.

(2) If it appears to the sheriff, on an application made to him by the officer of court (which shall not require to be intimated to the debtor), that the requirement of service under this section would be likely to prejudice the execution of the poinding he may dispense with such service.

Section 19 Value of articles which may be poinded and presumption as to ownership.

(1) The officer of court shall be entitled to poind articles only to the extent necessary to ensure that the sum recoverable at the time of the sale would be realised if they were sold at the values fixed under section 20(4) of this Act.

(2) In executing a poinding, an officer of court shall be entitled to proceed on the assumption that any article in the possession of the debtor is owned by him unless the officer of court knows or ought to know that the contrary is the case.

(3) The officer of court shall not be precluded from relying on the assumption mentioned in subsection (2) above by reason only of one or both of the following circumstances—

(a) that the article belongs to a class which is commonly held under a hire, hire-purchase or conditional sale agreement or on some other limited title of possession;

(b) that an assertion has been made that the article is not owned by the debtor.

Section 20 Poinding procedure.

(1) The procedure in a poinding shall be in accordance with this section and section 21 of this Act.

(2) Before executing the poinding, the officer of court shall—

(a) exhibit to any person present the warrant to poind and the certificate of execution of the charge relating thereto;

(b) demand payment of the sum recoverable from the debtor, if he is present, or any person present appearing to the officer of court to be authorised to act for the debtor; and

(c) make enquiry of any person present as to the ownership of the articles proposed to be poinded, and in particular whether there are any persons who own any articles in common with the debtor,

but it shall not be necessary for the officer of court to make public proclamation of the poinding or to read publicly the extract decree containing the warrant to poind and the execution of the charge relating thereto.

(3) The officer of court shall be accompanied at the poinding by one witness.

(4) The poinded articles shall be valued by the officer of court according to the price which they would be likely to fetch if sold on the open market unless he considers that the articles are such that a valuation by a professional valuer or other suitably skilled person is advisable, in which case he may arrange for such a valuation.

(5) The officer of court shall prepare a schedule (referred to in this Part of this Act as “ the poinding schedule ”), in the form prescribed by Act of Sederunt, which shall specify—

(a) the identity of the creditor and of the debtor;

(b) the articles poinded, and their respective values;

(c) the sum recoverable; and

(d) the place where the poinding was executed.

(6) On completion of the valuation the officer of court shall—

(a) along with the witness sign the poinding schedule;

(b) deliver the poinding schedule to any person in possession of the articles or—

(i) where the poinding was executed in a dwellinghouse or other premises, leave it in the premises; or

(ii) in any other case, deliver it to premises occupied by that person;

(c) if the person in possession of the articles is not the debtor and it is reasonably practicable, serve a copy of it by post on the debtor;

(d) inform the debtor (if present) of his right to redeem poinded articles under section 21(4) of this Act;

(e) inform any person present who owns any poinded article in common with the debtor of his right to redeem poinded articles under section 41(2) and (3)(a) of this Act; and

(f) inform the debtor (if present) and any person present who owns any poinded article in common with the debtor, or who is in possession of any poinded article, of his right to apply for an order releasing articles from poinding under section 16(4), 23(1) or 41(3)(b) of this Act.

(7) The officer of court shall leave poinded articles at the place where they were poinded, except that where that place is not a dwellinghouse or other premises, if he considers it necessary for their security or the preservation of their value and there is insufficient time to obtain an order under section 21(1)(a) of this Act, he shall remove them at the creditor’s expense—

(a) to the nearest convenient premises belonging to the debtor or to the person in possession of the articles; or

(b) if no such premises are available, to the nearest suitable secure premises.

Section 21 Poinding procedure - further provisions.

(1) The sheriff, on an application by the creditor, the officer of court or the debtor intimated in accordance with subsection (2) below, may at any time after the execution of a poinding make an order—

(a) for the security of any of the poinded articles; or

(b) in relation to any of the articles which are of a perishable nature or which are likely to deteriorate substantially and rapidly in condition or value, for their immediate disposal and, in the event of their disposal by sale, for payment of the proceeds of sale to the creditor or for consignation of the proceeds in court until the diligence is completed or otherwise ceases to have effect,

and a decision of the sheriff under paragraph (b) above for the immediate disposal of articles shall not be subject to appeal.

(2) An application for an order under subsection (1)(b) above—

(a) by the creditor or the officer of court, shall be intimated by him to the debtor;

(b) by the debtor, shall be intimated to the creditor or the officer of court,

at the time when it is made.

(3) It shall not be competent for an officer of court in executing a poinding to examine a person on oath as to the ownership of any article.

(4) Subject to subsection (1)(b) above, the debtor shall be entitled, within 14 days after the date of execution of the poinding, to redeem any poinded article at the value fixed under section 20(4) of this Act; and the officer of court shall mention any such redemption in his report under section 22 of this Act or, if he has already made that report, shall report the redemption as soon as is reasonably practicable to the sheriff.

(5) The officer of court shall, on receiving payment from the debtor for the redemption under subsection (4) above of a poinded article, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.

(6) Subject to section 29(2)(b) of this Act, the revaluation in the same poinding of an article which has been valued under section 20(4) of this Act shall not be competent.

(7) A poinding shall be deemed to have been executed on the date when the poinding schedule has been delivered, or left on the premises, in pursuance of section 20(6)(b) of this Act.

(8) Subject to subsection (9) below, at any time before the execution of a poinding on behalf of a creditor, an officer of court shall, if requested to do so by any other creditor who has delivered to him a warrant to poind, conjoin that creditor in the poinding.

(9) It shall not be competent for an officer of court to conjoin a creditor in a poinding in respect of a debt for which the creditor holds a summary warrant.

Section 22 Report of execution of poinding.

(1) The officer of court shall, within a period of 14 days after the date of execution of the poinding (or such longer period as the sheriff on cause shown may allow on an application by the officer of court) make to the sheriff in the form prescribed by Act of Sederunt a report of the execution of the poinding which shall be signed by the officer of court and the witness who attended the poinding.

(2) The officer of court shall note in the report under subsection (1) above any assertion made before the submission of the report that any poinded article does not belong to the debtor.

(3) The sheriff may refuse to receive a report on the ground that it has not been made and signed in accordance with subsection (1) above, and if the sheriff refuses to receive a report on that ground the poinding shall cease to have effect.

(4) The sheriff clerk shall intimate a refusal under subsection (3) above—

(a) to the debtor; and

(b) if he is a different person from the debtor, to the person in possession of the poinded articles.

(5) Any rule of law whereby the sheriff may refuse to receive a report of the execution of a poinding on a ground other than one specified in subsection (3) above shall cease to have effect.

Section 23 Release of poinded article on ground of undue harshness.

(1) The sheriff may, on an application made within 14 days after the date of execution of a poinding by the debtor or any person in possession of a poinded article, make an order releasing an article from the poinding if it appears to the sheriff that its continued inclusion in the poinding or its sale under warrant of sale would be unduly harsh in the circumstances.

(2) Where the sheriff has made an order under subsection (1) above he may, notwithstanding section 25 of this Act, on an application by the creditor or by an officer of court on his behalf, authorise the poinding of other articles belonging to the debtor on the same premises.

Section 24 Invalidity, cessation and recall of poinding.

(1) If, at any time before the sale of the poinded articles, the sheriff is satisfied that the poinding is invalid or has ceased to have effect he shall, on his own initiative or on an application by the debtor, make an order declaring that to be the case, and may make such consequential order as appears to him to be necessary in the circumstances.

(2) Without prejudice to section 16(4) of this Act, it shall not be competent for the sheriff to make an order under subsection (1) above on the ground that any poinded article is exempt from poinding under that section.

(3) At any time before an application is made under section 30 of this Act for a warrant of sale, the sheriff may, on an application by the debtor, recall a poinding on any of the following grounds—

(a) that it would be unduly harsh in the circumstances for a warrant of sale of the poinded articles to be granted;

(b) that the aggregate of the values of the poinded articles fixed under section 20(4) of this Act was substantially below the aggregate of the prices which they would have been likely to fetch if sold on the open market; or

(c) that the likely aggregate proceeds of sale of the poinded articles would not exceed the expenses likely to be incurred in the application for warrant of sale and in any steps required to be taken under this Part of this Act in execution of such a warrant, on the assumption that that application and such steps are unopposed.

(4) The sheriff shall not grant an application on the ground mentioned in subsection (3)(c) above if an order for further poinding of articles belonging to the debtor has been authorised under section 23(2), 28(6) or 29(2), or has become competent by reason of section 9(12), 28(2), 40(5) or 41(6), of this Act.

(5) The sheriff shall not make an order under subsection (1) above, recall a poinding or refuse an application under this section without first giving the debtor and the creditor—

(a) an opportunity to make representations; and

(b) if either party wishes to be heard, an opportunity to be heard.

(6) The sheriff clerk shall intimate to the debtor any order made under subsection (1) above by the sheriff on his own initiative.

Section 25 Second poinding in same premises.

Subject to sections 9(12), 23(2), 28(2) and (6), 29(2), 40(5) and 41(6) of this Act, where articles are poinded in any premises (whether or not the poinding is valid), another poinding in those premises to enforce the same debt shall not be competent except in relation to articles which have been brought on to the premises since the execution of the first poinding.

Section 26 Sist of proceedings in poinding of mobile homes.

(1) Where a caravan, houseboat or other moveable structure which is the only or principal residence of the debtor or another person has been poinded the sheriff, on an application by the debtor or that other person made at any time after the execution of the poinding and before the granting of a warrant of sale, may order that for such period as he shall specify no further steps shall be taken in the poinding.

(2) In calculating under section 27(1) or (2) of this Act the period during which a poinding in respect of which an order has been made under subsection (1) above shall remain effective, there shall be disregarded the period specified in the order.

Section 27 Duration of poinding.

(1) Subject to subsections (2), (3) and (5)(a) below, a poinding shall cease to have effect on the expiry of a period of one year after the date of execution of the poinding, unless before such expiry an application has been made under section 30(1) of this Act for a warrant of sale in relation to the poinded articles.

(2) The sheriff, on an application by the creditor or by an officer of court on his behalf made before the expiry of the period mentioned in subsection (1) above and before an application has been made under section 30(1) of this Act, may extend that period—

(a) where he considers that, if the said period is extended, the debtor is likely to comply with an agreement between the creditor and the debtor for the payment of the sum recoverable by instalments or otherwise; or

(b) to enable further proceedings to be taken in the diligence where the termination of the poinding would prejudice the creditor and the creditor cannot be held responsible for the circumstances giving rise to the need for the extension,

for such further period as he considers reasonable in the circumstances.

(3) The sheriff may grant further extensions under subsection (2) above, on application being made to him before the expiry of the previously extended period.

(4) The decision of the sheriff under subsection (2) above shall not be subject to appeal, and shall be intimated to the debtor by the sheriff clerk.

(5) Where, within the period mentioned in subsection (1) above or within that period as extended under subsection (2) above, an application is made—

(a) under subsection (2) above—

(i) if the application is made on the ground referred to in paragraph (a) of that subsection, the poinding shall, if the date of disposal of the application is later than 14 days before the poinding is due to expire, continue to have effect until 14 days after that disposal;

(ii) in any other case, the poinding shall continue to have effect until the disposal of the application;

(b) under section 30 of this Act for a warrant of sale, the poinding shall, if the sheriff refuses to grant a warrant of sale, continue to have effect—

(i) until the period for leave to appeal has expired without an application for leave having been made;

(ii) where an application for leave to appeal is made, until leave has been refused or the application has been abandoned;

(iii) where leave to appeal has been granted, until the period for an appeal has expired without an appeal being made; or

(iv) where an appeal against the decision is made, until the matter has been finally determined or the appeal has been abandoned; or

(c) under section 30 of this Act for a warrant of sale, the poinding shall, if the sheriff grants a warrant of sale, continue to have effect—

(i) if the articles are sold, or ownership passes to the creditor under section 37(6) of this Act, until the date of such sale or such ownership passing; or

(ii) if the articles are not sold, or ownership does not pass to the creditor, until the expiry of the period specified for the warrant sale in the warrant of sale.

(6) Without prejudice to subsection (7) below, if a report has been made to the sheriff under section 36(2) of this Act, the poinding shall continue to have effect for a period of 6 months after the date when the latest such report was made.

(7) Where, within the period specified for the warrant sale in the warrant of sale, or within the period mentioned in subsection (6) above, an application is made under section 35 of this Act for a variation of the warrant of sale, the poinding shall cease to have effect—

(a) if the sheriff refuses to grant a variation—

(i) when the period for leave to appeal has expired without an application for leave having been made;

(ii) where an application for leave to appeal is made, when leave has been refused or the application has been abandoned;

(iii) where leave to appeal has been granted, when the period for an appeal has expired without an appeal being made; or

(iv) where an appeal against the decision is made, when the matter has been finally determined in favour of the sheriff’s decision or the appeal has been abandoned,

or on such later date as the sheriff may direct;

(b) if the sheriff grants a variation—

(i) where the articles are sold, or ownership passes to the creditor under section 37(6) of this Act in the period specified for the warrant sale in the warrant of sale as so varied, on the date of the warrant sale or of ownership so passing;

(ii) where the articles are not sold and ownership does not pass to the creditor within that period, on the expiry of that period.

Section 28 Removal of poinded articles.

(1) The debtor or the person in possession of poinded articles may move them to another location if—

(a) the creditor or an officer of court on behalf of the creditor has consented in writing to their removal; or

(b) the sheriff, on an application by the debtor or the person in possession, has authorised their removal.

(2) Where poinded articles have been removed under subsection (1) above, an officer of court may, under the same warrant to poind, again poind any of the articles so removed and, notwithstanding section 25 of this Act, any articles which were not so removed, whether or not they were previously poinded; and, on the execution of any such further poinding, the original poinding shall be deemed to have been abandoned.

(3) The removal, except in accordance with this Part of this Act, from any premises of poinded articles by—

(a) the debtor; or

(b) any person, other than the creditor or an officer of court, who knows that the articles have been poinded,

shall be a breach of the poinding and may be dealt with as a contempt of court.

(4) Where articles have been removed from premises otherwise than in accordance with this Part of this Act, the sheriff, on an application by the creditor—

(a) may, subject to subsection (5) below, make an order requiring the person in possession of the articles to restore them to the premises from which they were removed within a period specified in the order; and

(b) if an order under paragraph (a) above is not complied with, and it appears to the sheriff that the articles are likely to be found in premises specified in the application, may grant a warrant to officers of court—

(i) to search for the articles in those premises; and

(ii) to restore the articles to the premises from which they were removed or to make such other arrangements for their security as the sheriff may direct,

and such a warrant shall be authority to open shut and lockfast places for the purpose of its execution.

(5) Where it appears to the sheriff, on an application made to him by any person having an interest, that any article which has been removed from premises otherwise than in accordance with this Part of this Act has been acquired for value and without knowledge of the poinding, he shall—

(a) refuse an order under subsection (4)(a) above relating to that article;

(b) recall any such order which he has already made; and

(c) make an order releasing the article from the poinding.

(6) Where articles have been removed from premises otherwise than in accordance with this Part of this Act in circumstances in which the debtor is at fault the sheriff, on an application by the creditor or by an officer of court on his behalf, may, notwithstanding section 25 of this Act, authorise the poinding of other articles belonging to the debtor in the same premises.

(7) The removal of poinded articles to another location shall not have the effect of releasing the articles from the poinding.

Section 29 Unlawful acts relating to poinded articles.

(1) The wilful damage or destruction of poinded articles by—

(a) the debtor; or

(b) any person, other than the creditor or an officer of court, who knows that the articles have been poinded,

shall be a breach of the poinding and may be dealt with as a contempt of court.

(2) Where poinded articles have been damaged or destroyed the sheriff, on an application by the creditor or by the officer of court on his behalf, may—

(a) where the debtor has been at fault, authorise the poinding of other articles belonging to the debtor in the premises in which the original poinding took place; and

(b) in any case, authorise the revaluation of any damaged article in accordance with section 20(4) of this Act.

(3) Where a third party, knowing that an article has been poinded—

(a) wilfully damages or destroys it; or

(b) removes it from premises in breach of a poinding, and—

(i) it is damaged, destroyed, lost or stolen; or

(ii) it is acquired from or through him by another person without knowledge of the poinding and for value,

the sheriff may order the third party to consign the sum mentioned in subsection (4) below in court until the completion of the sale or until the poinding otherwise ceases to have effect.

(4) The sum to be consigned in court under subsection (3) above shall be—

(a) where the article has been damaged but not so damaged as to make it worthless, a sum equal to the difference between the value of the article fixed under section 20(4) of this Act and the value of the article as so damaged;

(b) in any other case, a sum equal to the value fixed under that section.

(5) Any sum consigned in court under subsection (3) above shall, on the completion of the sale or on the poinding otherwise ceasing to have effect, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.

Section 30 Application for warrant of sale.

(1) A creditor shall not be entitled to sell articles poinded by him unless, on an application by him or by an officer of court on his behalf, the sheriff has granted a warrant under this section (referred to in this Act as a “warrant of sale”).

(2) The sheriff may refuse to grant a warrant of sale—

(a) on his own initiative or on an objection by the debtor—

(i) on the ground that the poinding is invalid or has ceased to have effect;

(ii) on a ground mentioned in section 24(3)(b) or (c) of this Act;

(b) on an objection by the debtor, on the ground that the granting of the application would be unduly harsh in the circumstances.

(3) The creditor or officer of court, when making an application under subsection (1) above, shall serve a copy thereof on the debtor together with a notice in the form prescribed by Act of Sederunt informing him—

(a) that he may object to the application within 14 days after the date when it was made; and

(b) of his right to redeem poinded articles under section 33(2) of this Act.

(4) The sheriff shall not—

(a) refuse to grant a warrant of sale on his own initiative; or

(b) dispose of an application under subsection (1) above where the debtor has objected thereto in accordance with subsection (3)(a) above,

without first giving the parties an opportunity to be heard.

(5) It shall not be competent for the sheriff to refuse to grant a warrant of sale on the ground that any poinded article is exempt from poinding under section 16 of this Act.

(6) Where the sheriff refuses to grant a warrant of sale, the sheriff clerk shall intimate that refusal to the debtor and, if he is a different person from the debtor, to the person in possession of the poinded articles.

(7) A sale under a warrant of sale shall be known as a “warrant sale”.

Section 31 Provisions of warrant of sale.

(1) Every warrant of sale shall provide that the warrant sale shall be by public auction and shall specify the location of the sale in accordance with section 32 of this Act.

(2) A warrant of sale shall—

(a) appoint an officer of court to make arrangements for the warrant sale in accordance with the warrant;

(b) specify a period within which the warrant sale shall take place; and

(c) empower the officer of court to open shut and lockfast places for the purpose of executing the warrant.

(3) Where the warrant of sale provides for the sale to be held in premises other than an auction room, it shall appoint to conduct the warrant sale—

(a) if the aggregate of the values of the poinded articles fixed under section 20(4) of this Act exceeds £1,000 or such other sum as may be prescribed by Act of Sederunt and a person who carries on business as an auctioneer is available, that person;

(b) in any other case, the officer of court appointed under subsection (2) above or another suitable person.

(4) A warrant of sale which provides for the warrant sale to be held in premises other than where the poinded articles are situated shall also empower the officer of court appointed by the warrant to remove the poinded articles to such premises for the sale.

Section 32 Location of sale.

(1) The warrant of sale shall not provide for the warrant sale to be held in a dwellinghouse except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof and, if he is not the occupier, of the debtor.

(2) Subject to subsection (3) below, where articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given, the warrant of sale shall provide for the warrant sale to be held in an auction room specified in the warrant.

(3) Where—

(a) articles are poinded in a dwellinghouse and any consent required under subsection (1) above is not given; and

(b) it appears to the sheriff that, if the sale were to be held in an auction room, the likely proceeds of the warrant sale would not exceed the expenses of the application for warrant of sale and the expenses likely to be incurred in any steps required to be taken under this Part of this Act in the execution of the warrant on the assumption that that application and any such steps are unopposed,

if the creditor is able to offer suitable premises in which the warrant sale could be held, the warrant of sale shall, subject to subsection (1) above and subsections (4) and (5) below, provide for the sale to be held in those premises, but otherwise the sheriff shall refuse to grant a warrant of sale.

(4) Subject to subsection (5) below, the warrant of sale shall not provide for the sale to be held in premises (other than a dwellinghouse or an auction room) which are occupied by a person other than the debtor or the creditor except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof.

(5) Where the occupier of premises (other than a dwellinghouse or an auction room) where poinded articles are situated does not give his consent under subsection (4) above to the holding of the warrant sale in those premises, the warrant of sale may, if the sheriff considers that it would be unduly costly to require the removal of the poinded articles to other premises for sale, nevertheless provide that the warrant sale shall be held in the premises where they are situated.

(6) In this section “ occupier ”, in relation to premises where there are 2 or more occupiers, means each of them.

Section 33 Release or redemption of poinded articles after warrant.

(1) Where a warrant sale is to be held in premises other than where the poinded articles are situated, the officer of court may, in pursuance of section 31(4) of this Act, remove to those premises only such poinded articles as, if sold at their values fixed under section 20(4) of this Act, would realise in total the sum recoverable at the time of the sale; and shall release the remaining poinded articles from the poinding.

(2) Subject to section 21(1) of this Act, the debtor may, within 7 days after the date when a copy of an application for warrant of sale has been served on him, redeem any poinded article by paying to the officer of court a sum equal to its value fixed under section 20(4) of this Act.

(3) The officer of court shall, on receiving payment from the debtor under subsection (2) above, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.

(4) The creditor and the debtor may by agreement release articles from the poinding.

(5) Any release or redemption of poinded articles under this section—

(a) shall be mentioned in the next subsequent application (if any) which is made for warrant of sale or for variation of warrant of sale; or

(b) if it takes place after an application for warrant of sale (or variation thereof) has been made and before it has been disposed of, shall be reported as soon as is reasonably practicable by the officer of court to the sheriff; or

(c) in any other case, shall be mentioned in any report of sale.

Section 34 Intimation and publication of sale.

(1) The officer of court appointed under section 31(2)(a) of this Act to make arrangements for the warrant sale shall—

(a) as soon as is reasonably practicable intimate to the debtor and, if the person in possession of the poinded articles is not the debtor, to that person, the date arranged for the warrant sale; and

(b) not later than the date of intimation under paragraph (a) above, serve a copy of the warrant of sale on the debtor and any such person.

(2) Where the warrant sale is not to be held in the premises where the poinded articles are situated, the officer of court referred to in subsection (1) above shall, not less than 7 days before the date arranged for the removal of the poinded articles from those premises, intimate to the debtor and, if he is not the debtor, to the person in possession of the poinded articles—

(a) the place where the sale is to be held; and

(b) the date arranged for the removal.

(3) The sheriff clerk shall arrange for such particulars of the warrant of sale as are prescribed by Act of Sederunt to be displayed on the walls of court.

(4) The warrant sale shall be advertised by public notice and, where the sale is to be held otherwise than in an auction room, the public notice shall be as directed by the warrant of sale.

(5) Where the warrant sale is to be held in premises not belonging to the debtor, the public notice under subsection (4) above shall not name him or disclose that the articles for sale are poinded articles.

(6) Where the warrant sale is to be held in premises other than the debtor’s premises or an auction room, any public notice of the sale shall state that the articles to be sold do not belong to the occupier of the premises where the sale is to be held.

Section 35 Alteration of arrangements for sale.

(1) Where, for any reason for which neither the creditor nor the officer of court is responsible, the arrangements made for the warrant sale cannot be implemented in accordance with the provisions of the warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf, grant a variation of the warrant of sale.

(2) Subject to subsection (3) below, the sheriff may, on his own initiative or on an objection by the debtor, refuse to grant an application under subsection (1) above on the ground that—

(a) the poinding is invalid or has ceased to have effect; or

(b) the proposed variation is unsuitable.

(3) It shall not be competent for the sheriff to refuse to grant an application under subsection (1) above on the ground that any poinded article is exempt from poinding under section 16 of this Act.

(4) Section 32 of this Act shall apply to a warrant of sale as varied under this section.

(5) A creditor or officer of court who makes an application under subsection (1) above shall at the same time—

(a) serve on the debtor a copy thereof together with a notice in the form prescribed by Act of Sederunt, informing him that he may object to the application within 7 days after the date of such service; and

(b) serve on any other person in possession of the poinded articles a copy of the application.

(6) The sheriff shall not—

(a) refuse to grant a variation under subsection (1) above on his own initiative; or

(b) dispose of an application under that subsection where the debtor has objected thereto in accordance with subsection (5) above,

without first giving the parties an opportunity to be heard.

(7) On granting a variation under subsection (1) above, the sheriff may make such consequential orders as he thinks fit including, where appropriate—

(a) an order requiring service on the debtor, and on any other person in possession of the poinded articles, of the warrant of sale as varied;

(b) the retaking of any steps in the diligence which have already been taken.

(8) Where the sheriff refuses to grant a variation under subsection (1) above, the sheriff clerk shall intimate that refusal to the debtor and to any other person in possession of the poinded articles.

(9) Subject to subsection (10) below and without prejudice to section 36(3) of this Act, after intimation has been given under section 34 of this Act to the debtor of the date arranged for the warrant sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or officer of court shall not be entitled to arrange a new date for the sale or for such removal.

(10) Where, for any reason for which neither the creditor nor the officer of court is responsible, it is not possible for the warrant sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the officer of court to arrange a new date in accordance with subsection (11) below, and the officer of court shall intimate the new date to the debtor and to any other person in possession of the poinded articles.

(11) The new date arranged under subsection (10) above—

(a) shall not in any case be less than 7 days after the date of intimation under that subsection; and

(b) in the case of a new date arranged for a warrant sale, shall be a date within the period specified in the warrant of sale as the period within which the sale is required to be held.

Section 36 Payment agreements after warrant of sale.

(1) Without prejudice to section 35(1) and (10) of this Act, in order to enable the sum recoverable to be paid by instalments or otherwise in accordance with an agreement between the creditor and the debtor, the creditor may, after the granting of a warrant of sale, cancel the arrangements for the warrant sale on not more than 2 occasions.

(2) The creditor or the officer of court on his behalf shall as soon as is reasonably practicable after any agreement of the kind referred to in subsection (1) above has been entered into make a report of the agreement to the sheriff.

(3) Where, following cancellation of the warrant sale in pursuance of subsection (1) above, the debtor is in breach of the agreement—

(a) if the provisions of the original warrant of sale still allow, the creditor may instruct the officer of court to make arrangements for the warrant sale in accordance with those provisions;

(b) if, for any reason for which neither the creditor nor the officer of court is responsible, arrangements for the warrant sale cannot be implemented in accordance with the provisions of the original warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf made within 6 months after the date when the report was made under subsection (2) above, grant a variation of the warrant of sale under section 35(1) of this Act.

(4) For the purposes of subsection (3) above, the original warrant of sale shall be deemed to have specified that the sale is required to be held within the period of 6 months after the date when the latest report was made under subsection (2) above.