Can the execution of “Saisie Revendication” Orders be opposed?
Under the laws of Mauritius, the lawful owners of moveable property are afforded well defined protection by way of provisional seizures namely “Saisie Revendication” under Articles 826 – 831 of the Code de Procedure Civile.
Over the years, Saisie Revendication applications before our Courts have been a powerful and effective remedy for leasing companies to repossess their equipment against defaulting lessees. Saisie Revendication applications applied for on an ex parte basis, behind the back of defaulting lessees on affidavit evidence are granted on a daily basis by our Judges pursuant to Article 826 of the Code de Procedure Civile. The law provides that only an Usher is empowered to execute a Saisie Revendication Order.
Virtually all Orders issued by our Courts have to be complied with under the risk of being convicted for contempt of Court. Surprisingly, non compliance with Saisie Revendication Orders under certain conditions seems to escape contempt of court conviction.
Against the backdrop that Saisie Revendication Orders are granted on an “Ex Parte” basis and to prevent any abuse of such a powerful remedy, our Judges have deemed it fit and proper to limit the execution of their orders to the provisions of Articles 806 and 826 to 831 of the Code de Procedure Civile.
Since any Saisie Revendication Order is subject to Articles 826 to 831 of the Code de Procedure Civile, the recipient of such an Order is statutorily and lawfully entitled to invoke the objection mechanism set out in Article 829 of the Code de Procedure Civile by opposing the “saisie revendication”.
Article 829 of the Code de Procedure Civile reads as follows:
“Si celui chez lequel sont les effets qu’on veut revendiquer, refuse les portes ou s’oppose a la saisie, il en sera référé au juge; et cependant il sera sursis a la saisie, sauf au requérant à établir garnison aux portes” (emphasis added).
Once the objection mechanism set out in Article 829 is triggered, the opposition will have to be referred back to the Judge that issued the Order.
E. Glasson, in his book entitled “Precis Théorique Et Pratique De Procedure Civile, Deuxième Edition, Tome Second, 1908 at page 640 in explaining 829 of the French Code de Procedure Civile which was then similar to Article 829 of the Mauritian Code de Procedure Civile by stating further at point 1554 that once the objection mechanism has been triggered, the Usher in charge of the execution of the Saisie Revendication can no longer proceed with the execution. If the Usher executed the Saisie Revendication Order in the face of the oppositions, the Usher would be liable to damages and disciplinary sanctions.
In view of the clear and unambiguous provisions of Article 829 of the Code de Procedure Civile, it is possible to oppose a Saisie Revendication Order pursuant to Article 829 of the Code de Procedure Civile and therefore cannot be condemned for contempt of court for exercising such a statutory right.
