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.

Type

Insight

Locations

Mauritius

Share
Twitter LinkedIn Email Save as PDF
More Publications
9 Sep 2022

Attachment Orders – A useful debt enforcement tool for creditors

One of the unsettling questions that lingers in the minds of creditors is how to secure or recover t...

25 Jul 2022

APPLEBY MAURITIUS NEWSLETTER, JULY 2022

There have been interesting developments in our legal landscape since our last issue with the Govern...

22 Jul 2022

Digital Banking - Being future ready

One of the positive aspects of digitalisation is the opportunity which it has offered for financial ...

21 Jul 2022

Concurrence Déloyale

This article reviews the approach which the Mauritian Supreme Court adopts on the concept of “Conc...

21 Jul 2022

Case Summaries

The Supreme Court had to address a preliminary objection raised by co-respondents Nos. 1, 2 and 3 on...

21 Jul 2022

FSC Rules issued under the Virtual Asset and Initial Token Offerings Services Act 2021 (VAITOS)

On 15 July 2022, the Financial Services Commission (FSC) issued the following rules under the VAITOS...

10 Jun 2022

‘’With the people, for the people’’ – the Mauritian National Budget 2022-2023

On 07 June 2022, the Minister of Finance, Economic Planning and Development (Minister of Finance) ta...

Contributors: Vaishali Damonaiko
26 Apr 2022

Appleby Mauritius Newsletter, April 2022

In the April 2022 issue of Appleby’s newsletter, we give you an overview of the latest legal and r...

26 Apr 2022

Employment rights during and following a pandemic under the Workers’ Rights Act

In view of the ongoing COVID-19 pandemic which is currently affecting the community at a global leve...

22 Sep 2021

The Financial Services Commission of Mauritius issues the Financial Services (Crowdfunding) Rules 2021

In line with the National Budget 2021-2022 and the ambition of the Mauritian Government to establish...