Section 4

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When there is manifest insufficiency in the assets indicated by the Judgement Debtor (execution opponent). In such cases the indication made by the Judgement Debtor (execution opponent) shall stand and the Decree Holder (execution applicant) shall indicate the assets necessary to move up the insufficiency. Article 837 – Indication how made - The indication may be made either by way of application or by record signed in the proceedings, and in such case as far as possible identification of the assets is to be given. As to the assets, the denomination or police number, if any, shall be indicated, situation and 262 boundaries, and number of description if they are registered in the Land Registration Office. As to the movables, the place where they are found shall be indicated and their particulars, if possible. As to the credit instruments, name of the debtor, the nature and origin of the debt, the title document supporting the credit instrument and the date of maturity. SUB-SECTION III ATTACHMENT OF IMMOVABLES ASSETS Article 838 – How attachment of immovables is done - The order which directs the attachment shall be notified to the Judgement Debtor (execution opponent). From the time of the service of the notice the seizure shall be deemed as done and the Judgement Debtor (execution opponent) shall stand, in respect of said assets in the position of a depositary. In relation to third party the seizure shall produce effects from the date of the registration. The registration shall have as basis one certified copy in which names of the Decree Holder (execution applicant) and of Judgement Debtor (execution opponent) and the amount for which the execution has been moved and it is declared that attachment of specific assets has been ordered. When such assets are already described, the identification shall consist in indicating the respective numbers. One note with the mention of the date of the registration shall be annexed to the file of proceedings. Article 839 – Delivery to a Court receiver - The Decree Holder (execution applicant) may apply that the attached assets be handed over to a Receiver different from the Judgement Debtor (execution opponent). The receiver shall be chosen in such case by the judge under information of the office, and person chosen should be of the fitness corresponding to income of the assets for the period of one year. Only with the express consent of the Decree Holder (execution applicant) the depository may be the spouse of the Judgement Debtor (execution opponent) or any relative by blood or affinity, in direct line or in the first degree in the transversal line. § Sole Paragraph: Record shall be made in the file of the handing over the asset to the Receiver 263 signed by him or by two witnesses when the Receiver is unable to sign. To the Receiver shall be handed over a list of assets deposited, if he so demands. Article 840 – Effective delivery - If the Receiver finds difficulty in taking charge of the assets or had doubts over the object of the deposit, he may apply that one employee goes to the site of the location of the assets and makes him effective delivery at the site. When the doors are closed or there is some resistance offered, the employee shall seek the assistance of local administrative authority of the parish and also police force. The doors shall be opened by breaking in the presence of local administrative authority with two witnesses and the report of the occurrence shall be made. Article 841 – Special Receiver - If the assets are rented or under share cropping agreement, the Receiver shall be the tenant or share cropper. If the asset is let out to more than one person, amongst them one shall be chosen as depository who shall collect the rent from other lessees. The rent in cash shall be deposited as and when accrued or collected in the establishment where the judicial deposits are made. Article 842 – Extension of attachment - Attachment of fruits - The attachment shall include the property with all its appurtenances, fruits and products which are not expressly excluded or over which there does not exist any privilege. If the property is destroyed, deteriorated or acquired, right of the execution applicant arising from attachment stands transferred to the compensation which is realized there from. § Sole Paragraph: Pending fruits may be attached also in separate as moveable property provided that they do not go beyond one month from the normal time of the collection of the fruits. If it so happens, the attachment of the property shall not include that of the fruits; but they may again be attached without prejudice to the prior attachment. Article 843 – Administration of attached assets - It is the duty of the Recever to look after and administer the assets with diligence and zeal as a good father of the family, and with the obligation to render accounts thereof. 264 If the Decree Holder (judgment creditor) and the judgment debtor agree how to explore the attached assets, such agreement shall be followed. In the absence of any agreement, the building assets shall be let out, if not let out so far, and the rural properties let out, given for cultivation on partnership or cultivated directly as the grant composition to the society or to one or more members of unlimited liability Receiver deems fit. The Decree Holder (judgement creditor) or the judgment debtor may offer a more advantageous tenant, which the Receiver will be bound to accept; and they can also agree that the tenancy be awarded in public auction or by sealed tenders and in such event they will be liable to pay costs, if nobody offers higher rent. It is not lawful for the Receiver to create tenancies for a time limit higher than one year. Article 844 – Remuneration of Receiver - The Receiver has the right to some remuneration which shall be fixed by order of the Court in proportion to inconvenience caused to the Receiver, after hearing the Decree Holder (execution applicant) and Judgment Debtor (execution opponent) but shall not exceed 5% of the net income. Article 845 – Removal of Receiver - The Receiver, who fails to comply with the duties of his office, shall be removed upon the application of any interested party. The procedure for his removal shall follow the terms of article 1439. Article 846 – Conversion of seizure into attachment - If the assets have been seized, by order of the court the same shall be converted into attachment and respective entry shall be directed to be made in the land registration records. Article 847 – Guarantee from attachment – lifting of the same - The assets attached secure the fulfillment of the obligation, even though they have been transmitted, so long as the registration of transmission be subsequent to the registration of the attachment. However, if, on account of negligence of the Decree Holder (execution applicant), the execution is pending for more than six months, the Judgement Debtor (execution opponent) may seek the lifting of the attachment, the cancellation of its registration and the direction to the execution applicant to pay the costs to which he gave cause. 265 § Sole Paragraph: Execution shall be treated as stopped even if it has been remitted to draw up the account of costs or the costs have been paid. SUB-SECTION IV ATTACHMENT OF MOVEABLE ASSETS Article 848 – How attachment of moveables is done - The attachment shall be done by actual seizure of the assets which shall be handed over to a Receiver with a financial capacity corresponding to the probable value of the movables, unless they can be shifted to office of the Court or any place of public deposit or they may be kept in any compartment of the house where they were found. In the latter case such room shall be sealed. There shall be a record of the attachment made in which mention has been made of the time, that is, when the steps were taken describing specifically the assets and indicating their value and their destination of all the attachments which may have been made on the same date, one record shall be maintained. The money, credit instruments, stones, precious metals which might have been seized shall be deposited in the establishment where the judicial deposits are made on the orders of the Court. If there are assets in the conditions of no. 3 of article 433 whatever is said in that number shall be complied with. Article 849 – Physical obstruction - If the Judgement Debtor (execution opponent) or person who represents him refuses to open the door or movables or if the house is deserted and the doors and movables are within the closed place, whatever is said in article 840 shall be observed. Article 850 – Liability for malafide concealment - The Judgement Debtor (execution opponent) or other person of the house who has been found to have maliciously hidden some objects for the purposes of avoiding the attachment shall be subject to penalty corresponding to the offense of theft. When the official, at the time of attachment suspects that there is concealment he will direct 266 production of the objects with a warning to the person that he will be liable for the offence of concealment. Article 851 – Assets which may be sold - The depository shall sell the assets which cannot be preserved being subject to deterioration or depreciation. He may also sell live stock on his own initiative or upon the application of any of the parties, but the sale must be authorized by the court after hearing both the parties or persons other than the applicant. § Sole Paragraph: It is lawful, at the instance of Decree Holder (execution applicant) with notice to Judgement Debtor (execution opponent) to permit the sale of any assets whenever the delay becomes prejudicial. Article 852 – How a Receiver can cause an attached ship to navigate - The Receiver of an attached ship may make the ship navigable if the Judgement Debtor (execution opponent) and Decree Holder (execution applicant) are in agreement to get judicial authorization. If the authorization has been applied for, those interested parties shall be notified if they have not given their assent seeking their reply within 48 hours. If the permission is granted notice will be given by official letter to the captain of the port. Article 853 – How any creditor can cause an attached ship to navigate - Irrespective of conditions required by the preceding articles, any creditor may apply that an attached ship continue to navigate until it is put in auction, provided that security is furnished with usual insurance against the risks. The security shall be guarantying the debt subject of execution and costs of the proceedings. The Decree Holder (execution applicant) and the captain of the ship shall be served the notice to give their say on the suitability of the security and sufficiency of the insurance. If the application is allowed, the ship shall be handed over to the applicant, who shall stand for all the purposes in the position of depository and the notice of this fact shall be given to the captain of the port, by office letter. 267 Article 854 – Duty of Receiver to produce assets - Sanction - The Receiver is bound to produce, when so directed, the assets which he received, save for what is provided in the preceding articles. If he does not produce the same within 5 days, he shall be detained for the period corresponding to value of the deposit, calculated at the rate of 10 escudos per day and the prison shall not exceed two years; at the same time execution shall be taken in the same proceedings for the payment of the deposit value. The imprisonment shall cease as soon as such payment has been made or the Receiver begins to undergo the penalty to which he has been sentenced in criminal proceedings. Article 855 – Application of provisions relating to attachment of immovables - In all the rest to the extent possible, what is provided in previous sub-section shall apply. SUB-SECTION V ATTACHMENT OF CREDITS OR RIGHTS Article 856 – Attachment of credits and rights: how made - The attachment consists of notice to the debtor that the credit stands attached. The effect of such notice is that the credit stands subject to the order of the court of execution, and the debtor is not exonerated from making the payment to the creditor. The debtor shall be warned of such effect, at the time of service of the notice. The debtor is bound to declare whether such credit exists, what guarantees support the same, on which date the debt is payable and any other circumstances which may be relevant to the execution. In the event the debtor is unable to make above declarations at the time of service of the notice, he may do it thereafter by record before the court or by simple application. In the absence of any such declaration, it is understood that the debtor acknowledges the existence of such obligation in accordance with terms provided in the assignment of the credit for the purpose of attachment. If the debtor does not disclose the truth, he shall incur the liability as litigant in bad faith.  See also Article 465 of this Code. 268 Article 857 – Attachment of installments of credit - In case of an instrument of credit, the notice shall be issued to the judgement debtor to deliver the instrument; in case of refusal, steps will be taken for seizure. The same procedure shall apply if the debt is evidenced by an instrument which for any other reason, needs to be seized. All steps necessary for the preservation of the right to the credit may be ordered. § 1: If the credit is guaranteed by pledge, the same shall be attached by applying the provisions relating to attachment of the movables or shall be made by the transfer of right in favour of Decree holder (execution creditor); in the event the credit is guaranteed by registered mortgage, necessary endorsement of attachment shall be made in the records of the registration. § 2: If it is a case of debt instrument or certificates of public debt, subject to the execution with restrictions imposed by paragraph 5 of article 822, the attachment shall consist of registration made in favour of credit of the execution. The court shall requisition the registration before the Board of Public Credit by means of official communication, accompanied by the instruments of title or certificates, indicating the Receiver. Article 858 – When debtor denies existence of credit - In the event the debtor denies the existence of the credit, notice shall be issued to the Decree Holder (Execution creditor), Judgement debtor and the debtor to appear before the court on the date fixed for the purposes of hearing. If the debtor persists in denying the existence of the credit, the Decree holder (execution creditor) shall declare whether he maintains the prayer for the attachment or withdraws the same. If the Decree holder (execution creditor) insists on the attachment, the credit which has been attached shall be considered as litigious and as such shall be awarded or auctioned; if he withdraws, the Judgment debtor may apply that the attachment may subsist, and in such case he shall indicate a fit person who undertakes to offer the bid in the auction of the credit with the indication of the price offered. Article 859 – When Judgment Debtor needs to perform an obligation - If the debtor declares that the fulfillment of his obligation depends upon the Judgement debtor performing obligation on his part, the Judgement debtor shall be given notice to perform the said obligation within the period of ten days. 269 When the Judgement debtor does not comply with it, the Decree Holder or the Debtor may demand the fulfillment, by prosecuting the respective execution. The Decree Holder may also substitute himself in the place of Judgment debtor in the matter of fulfillment, in which case he will be subrogated in the rights of the debtor. If the Judgment debtor challenges the declaration of the debtor and it is not possible to end the controversy, the provision of preceding article shall be followed with necessary modifications. § Sole Paragraph: In the cases referred to in the second clause of this article, the enforcement of the condition may be demanded in the same proceedings by way of attached proceedings without necessity of issuing summons to the Judgement debtor, and the order passed in terms of the first clause shall operate as executive title. Article 860 – Attachment of allowances and salaries - When the attachment covers any allowances or salaries, notice shall be issued to the entity entrusted with preparation of necessary papers connected with allowances or salary, to effect the deduction corresponding to the credit attached. Article 861 – Deposit in the Treasury - The person notified when he does not contest the debt, and as soon as the same matures, shall be bound to deposit the respective amount in the establishment where the judicial deposits are made, at the order of the Court, and the document showing the deposit shall be annexed to the file. If the obligation does not consist of payment of an ascertained amount, the person notified, shall be considered as a Receiver of the consideration, in accordance with the previous sub-sections. § Sole Paragraph: In the case foreseen in previous article the deposit shall be made by the entity entrusted with the payment. Article 862 – Attachment of amount deposited with the establishment where the judicial deposits are made - The attachment made of the amount deposited in the establishment where the judicial deposits are made shall be done in the very document of the deposit, by maintaining the record in the file in which it exists, before the authority having jurisdiction over the deposit. 270 Article 863 – Attachment of rights to undivided assets - If the attachment has as its object the right to assets under indivision, the steps shall consist solely in giving the notice of the fact to the administrator of the assets, if any, and to the co-owners. At the time of service of the notice, or within the period of 3 days, the noticees shall make declaration which they deem fit, as to the right of the execution debtor and to the manner in which it may be made effective. When the right is contested, the attachment shall subsist or shall end as per the decision of the execution creditor and execution debtor, in accordance with article 858. SECTION III NOTICE TO THE CREDITORS AND VERIFICATION OF THE CREDITS Article 864 – Notice to creditors and spouse - As soon as the attachment is done, the creditors of the execution debtor shall be summoned to file their claims in the execution, and also spouse of the execution debtor shall be summoned whenever attachment relates to immoveable assets. The creditors in whose favour there is registration of any burden over the attached assets and all other known creditors are summoned by registered letters addressed to their domicile, which is reflected in the registration, except where they have different known address. The unknown creditors shall be summoned by way of publication for 20 days. § Sole Paragraph: The absence of summons directed in this article has the same effect as absence of service of summons on the defendant, but does not amount to annulment of the sales, adjudication or redemption already effected, nor even of the payment already made, and the spouse or the creditor who have not been summoned have the right to be paid compensation for the loss by the execution applicant.  See also Article 194, no, 1 of this Code. Article 865 – Claim by creditor - The creditor who desires to obtain payment shall file his claim within 10 days from the date of the service of summons, indicating the nature, quantum and origin of his credit and leading all the evidence. If the creditor has privilege or preference over the attached assets, he shall be admitted in the execution even though his credits have not matured, and in such case in the matter of calculation 271 of the interest, the deduction corresponding to the time which falls short for the maturity shall be made. If there is no privilege or preference over the attached assets, claim shall be admitted only when the credit is matured. § 1: If the attachment on the assets has taken place, subsequent to the time limit fixed in this article, the creditor with a privilege or preference shall file his claim within the period of 10 days from the service of summons or if he is not summoned, from the date when he has knowledge of the attachment. § 2: The creditor shall be admitted even though he is not armed with executive title. § 3: If the obligation is not certain or is illiquid, the creditor shall make it certain and liquid using the remedies available to the execution creditor.  See also articles 46, 803 to 806 of this Code. Article 866 – Objections over reclaimed credits - After the period of filing the claim of the creditor, the same may be contested within 8 days, by any creditor, by execution creditor or execution debtor. The objections may have as a ground the nullity, prescription, simulation, falsity and any other cause which extinguishes or modifies the obligations. However, if the credit has been recognized by final judgment, the objection may be based on any of the grounds mentioned in article 813, to the extent applicable. § Sole Paragraph: With the objections all the evidence shall be produced. Article 867 – Reply - The creditor, whose credit has been challenged, may reply within 5 days of the period fixed for filing objections. § Sole Paragraph: What is provided in sole paragraph of the previous article is applicable to the reply. Article 868 – Subsequent steps: verification and grading of credits - Thereafter, the procedural steps of ordinary proceeding or summary proceeding of declaration, subsequent to the pleadings are to be followed, depending upon whether claims have been filed for an amount higher than the limit prescribed for summary proceedings. 272 The credits shall be verified and marshalled as per legal provisions which are applicable and the credits not objected are deemed to be recognized. Article 869 – Right of creditor with a pending suit - If the creditor has his suit pending, he may apply up to the time fixed for filing of his claim of the credits, that the suit file may be transferred to the Court of execution and incorporated in the former, except where the date for arguments and judgement has been fixed. After the file is transferred, the suit shall, as regards subsequent steps, be subject to the formalities of the procedure of verification of the credits. § 1: If the creditor has privilege or preference on specific attached assets, the execution shall be suspended in respect of the said assets, as soon as the documents proving the pendency of the suit are annexed and it will only proceed after the final judgment having executory force. But if the suit is not moving on account of negligence of the plaintiff, for more than 20 days, the execution creditor may apply the further steps of the execution petition. § 2: If the transfer of the file is not permissible on account of fixation of the date of the arguments and judgement of the suit, the creditor, if desires to intervene in the execution, shall produce within the time limit for filing the claims, documents to prove the pendency of the suit and stage at which is reached. After the suit is decided finally in his favour the creditor shall be admitted in the execution. Article 870 – Indication by creditors of other assets for attachment – Declaration of Insolvency - The creditors, whose credits have been verified or recognized, may assign for the purpose of attachment assets other than those which have been already attached. As soon as it is found that the assets are lesser than the liabilities, the insolvency of the execution debtor shall be decreed and the proceeding shall be transferred to the competent court for the purpose of declaration of insolvency, if the court is different, for the purposes of following there the respective steps, making use of whatever has been processed. § Sole Paragraph: When other assets have been attached, the creditors in whose favour burdens over such assets have been registered shall be summoned personally, if they are not parties to the proceedings.  See also Article 1355 and following of this Code. 273 Article 871 – Multiple executions over assets - If there is more than one execution proceeding over the same assets, the execution in which the attachment has been done subsequently shall be stayed and Decree Holder (Execution Creditor) shall file his claim in the file where the assets have been attached in the first place. The execution petition shall be stayed only as regards the assets attached in the other file. SECTION IV PAYMENT SUB SECTION I MODES OF PAYMENT Article 872 – Modes of payment - Satisfaction may be effected by payment of money or by certificate of public debt, by allotment of assets, by allotment of their income or by realization of sale price. SUB-SECTION II DELIVERY OF MONEY OR OF CERTIFICATE Article 873 – Payment by money or by delivery of certificate - If the attachment has fallen on currency or credit in money deposited, the Decree Holder or any creditor who has priority shall be paid of his credit in cash. If documents of public debt are attached and the creditor proposes to receive the money by way of certificate, the judge shall declare to whom the sale certificate shall be given, in order that the creditor may obtain the endorsement in his favour. If the certificate has been issued in favour of different creditors they may apply to the board for the respective splitting.  See also Article 822 paragraph 5 of this Code. 274 SUB-SECTION III AWARD Article 874 – Requisites for award - Once the credits are accepted and marshalled, the Decree Holder (Execution creditor) or any creditor may demand that assets attached be awarded to them to the extent they are sufficient for the satisfaction of their credit. If the judicial sale has been announced, the sale shall not be stayed and the request shall be taken into consideration only where there are no bidders or participants. The applicant shall indicate the price he is offering which may not be less than that for which they would be put for sale in auction, whenever the award has been asked before the biding for second time. Article 875 – Adjudication where there are no bidders - When an application is made for awarding the property, the fact shall be made public by way of public notices and also notices in the newspaper in the same manner as for the auction and notice will be issued to the judgement debtor, to the creditors with the exception of the execution creditor and to the persons who have preferential right over the assets. Within the time of 10 days counting from publication of last notice any person may offer the highest price. If any communication is done after the publication of the last notice, the time limit starts from the date of the notice. If there is no offer within the time and within that period there is nobody to exercise the right of preference, the assets shall be awarded to the Decree holder (execution creditor) when he deposits what has to be deposited, in accordance with article 906. The Decree Holder (execution creditor) shall be notified to make the deposit within the period of 8 days. Article 876 – Award where there is bid - There being a more advantageous proposal, a date shall be fixed for the auction, by making necessary publications and issuing notices. The auction shall be opened on the basis of the highest bid, and the assets may be awarded to the highest bidder, but those who have preferential right may exercise the same in the proceedings of the award. 275 Where there are two offers of equal price which have not been exceeded at the auction the creditor who is on the first place in the list of marshalling shall be preferred, except where his credit is lesser than half of the price and other creditor exceeds such half. Where the creditors are in the same position or the proposals being of third parties, the assets shall be awarded in common to the proposers, except any one of them applies that licitation be held amongst them. Article 877 – Lapse of encumbrances and rights - The assets shall be awarded free from any burdens and rights, which are to lapse. Article 878 – Application for adjudication of incomes - The creditor who is marshalled at the first place may demand that, instead of awarding the ownership of the assets, he may be awarded their income only. On such request the judgement debtor shall be heard as well as other creditors whose claims have been acknowledged, and at that time of the award if none of them makes request to put the assets on auction; but if there is an auction for the second time no such application shall be entertained, so long as there is no bidder who is offering price of the assets equivalent to that for which they are put for the auction for the second time or to the creditor who is marshalled at the first place, or there is no deposit of the amount of such credit. Article 879 – Requisites necessary to award to creditor below the first - The award of the income may also be asked by the creditor who is not at the first place, provided that there is express consent of the previous creditors or the same creditors are paid of the amount of their credits. Article 880 – Award of incomes how made - When there is a request for awarding the income, the assets shall be leased in public auction or by closed envelopes and other formalities relating to judicial sale shall be observed, except where the debtor and the awardee agree that lease may be granted privately. After the costs of the execution are paid, the rents shall be collected from the awardee and the assets shall continue leased, until the awardee is reimbursed of the amount of his credit. The awardee shall be in the position of lessor, but he shall not evict the lessee, nor shall he take 276 any resolution in connection with the assets, without consent of the Judgment debtor and of other creditors. When it is not possible to arrive at an agreement, the matter shall be decided by the court. § Sole Paragraph: If a fresh lease is required, what provisions of this article shall be followed. Article 881 – Register of Awards - The award of income may be registered as an encumbrance on the assets on the basis of order which sanctions it. SUB SECTION IV SALE DIVISION I KINDS OF SALE Article 882 – Kinds of sale - After the claims of the creditors are accepted up to time when the claims could be filed, there shall be sale of the assets attached, if the assets have not been disposed by way of award. Sale may be judicial or extra judicial. Article 883 – Modes of judicial and extra judicial sale - The extra judicial sale may take following forms: a) Sale in Stock exchange or commodity exchange; b) Direct sale to entities which by law have right to acquire specific assets; c) Sale by way of private negotiations; d) Sale through establishment of auctions; Judicial sale may be made by written tenders of offers made in closed envelopes or by licitation in public auction. DIVISION II EXTRA JUDICIAL SALE Article 884 – Sale through exchanges - The credit instrument shall be sold in exchanges where the sales have quotation in the market. 277 In the judicial divisions where there are exchanges for commodities, such commodities or other assets which are quoted there, shall be sold. Article 885 – Direct sale by force of law - If the assets are by law to be handed over to specific entities they shall be sold to them directly. Article 886 – Sale by private negotiation - The sale shall be done by private negotiation: