Thailand Civil Procedure Code Section-322-325
PART VI
RIGHTS OF THIRD PARTIES AND PERSONS INTERESTED IN THE PROPERTY SUBJECT TO EXECUTION
Section 322.323 Subject to section 323 and section 324, the provisions of this Code governing execution against property of a judgement debtor shall not affect real rights, preferential rights, rights of retention or other rights which are held by a third party over the property or enforceable on application by a third party against the property according to law.
Section 323.324 Subject to section 55, any person who alleges that the defendant or judgement debtor is not the owner of the property seized by an executing officer, or that he or she is the crowner who has ownership or possessory right over the property which is immovable property properly partitioned for the possession purposes, or that he or she is the crowner of the property which is divisible movable property, or that he or she was previously in a position to have his or her right in the property registered, may apply for the release of such property, in whole or in part or only in his or her own part, as the case may be, by filing an application with the court issuing the writ of execution within sixty days from the date of seizure of such property. However, if it is unable to file the application within such period of time, such person may file it after the lapse of such period of time only in special circumstances and when the application is filed no later than seven days prior to the date fixed by the executing officer to be the first day for sale by auction or disposal by any other means of such property, except in the case of force majeure, in which case such person may file the application at a later time but he or she must file it before the sale by auction or disposal by any other means of such property has taken place.
In the case of property under section 332, the person making the allegation may file the application with the court within sixty days from the date of seizure of the property. However, if it is unable to file the application within such period of time, such person may file it after the lapse of such period of time only in special circumstances but before the executing officer has paid the proceeds derived from the sale of such property to the judgement creditor under section 339 or before the distribution account which shows the amount of proceeds from the sale of such property becomes final under section 340, as the case may be. In this regard, the amount of net proceeds derived from the sale shall be deemed as if it were the property for which release is applied.
When the court orders to accept the application, it shall forward a copy of the application to the plaintiff or judgement creditor, the defendant or judgement debtor, and the executing officer. When the executing officer has received such application, if the seized property is not property under section 332, the sale by auction or disposal of such property shall be stayed pending the decision, and the court shall try and adjudicate such case as a normal case.
The plaintiff or judgement creditor may file a motion that such application is not founded and filed to delay the execution. If there is preliminary evidence showing that such motion is admissible, the court shall have the power to order the person making the allegation to deposit a sum of money or furnish a guarantee to the court in an amount and within a period of time as the court sees fit, to secure the payment of compensation to the plaintiff or judgement creditor for damages that may be suffered by him or her as a result of the filing of the application. If the person making the allegation fails to comply with the court order, the court shall issue an order disposing of the case from the case list. With respect to the money or guarantee deposited with the court, if the court finds that it is no longer necessary, it may order the refund or the termination of such guarantee. The order of the court issued under this paragraph shall be final.
In the case where the court issues an order dismissing the application filed under paragraph one or paragraph two, if the plaintiff or judgement creditor who is injured as a result of the filing of such application is of the opinion that such application is not founded and filed to delay the execution, such person may, within thirty days from the date on which the court issues the order of dismissal of the application, file a motion with the court for an order for the person making such allegation to pay compensation for the damage suffered by him or her. In this case, the court shall have the power to separate the trial thereof from the original case. When the court has conducted an examination and found that such motion is admissible, the court shall issue an order for the person making the allegation to pay compensation in an amount as it sees fit. If such person fails to comply with the court order, the plaintiff or judgement creditor may apply to the court for carrying out execution against such person as if he or she were a judgement debtor.
Section 324.325 Any person who is entitled to performance or to a portion of proceeds from the sale by auction or disposal by any other means of a judgement debtor’s property seized by an executing officer by virtue of a real right, preferential right, right of retention or any other right held by such person over the property or enforceable on application by such person against the property according to law, shall proceed as follows:
- In the case of a mortgagee of the property or a holder of a registered preferential right over the immovable property, such person may file an application with the court issuing the writ of execution before such property has been put up for the sale or disposal, for any of the following orders:
(a) In the case of a mortgage which may be foreclosed, he or she may apply for foreclosure of such mortgage, and if the court issues an order granting the foreclosure, the seizure of such mortgaged property shall automatically be revoked;
(b) In other cases, he or she may apply to the executing officer for satisfaction of the obligation owed to him or her out of the proceeds derived from the sale or disposal of such property in preference to other creditors, in accordance with the provisions of the Civil and Commercial Code or other laws.
2. In the case where it appears to the executing officer that the property sold or disposed of belongs to registered crowners, the executing officer shall reserve the amount of money belonging to the other crowners, other than that belonging to the judgement debtor, out of the proceeds derived from the sale or disposal of such property as prescribed by section 340.
3. In the case of a holder of a right of retention who has no preferential right over the property sold or disposed of, such person may, within fifteen days from the date of sale or disposal of such property, file an application with the court issuing the writ of execution for satisfaction of the obligation owed to him or her out of the proceeds from the sale or disposal in preference to other creditors who have no preferential right over such property.
4. In cases other than those specified in (1), (2) and (3), the holder of right may, within fifteen days from the date of sale or disposal of such property, file an application with the court issuing the writ of execution to request to obtain a portion of the proceeds derived from such sale or disposal or for satisfaction of the obligation owed to him or her out of the proceeds in preference to other creditors, in accordance with the provisions of the Civil and Commercial Code or other laws.
Section 325.326 When an order of attachment of a claim has been notified to the third party under section 316, such third party may file a motion objecting to the order of attachment with the court within fifteen days.
A person who shall be injured as a result of the order of attachment may file a motion objecting to such order within the following time limits, but not later than fifteen days from the date of acknowledgement of the order of attachment:
- If such claim is for payment of a sum of money, the motion shall be filed with the court before the date on which the executing officer has paid such money, in whole or in part, to a judgement creditor;
- If such claim is for delivery or transfer of property, the motion shall be filed with the court before the sale by auction or disposal by any other means of such property has taken place;
- If such claim is for performance of an obligation other than (1) and (2), the motion shall be filed with the court before a third party has performed the obligation.
When the court has ordered to accept the motion of objection under paragraph one or paragraph two, it shall serve a copy of the motion on the judgement creditor, the judgement debtor and the executing officer, and the executing officer shall stay the enforcement of the order of attachment pending the decision. If the court, after conducting an examination, is satisfied that the claim of the judgement debtor actually exists and is enforceable, it shall dismiss the motion and issue an order compelling the third party to comply with the order of attachment, but if it is satisfied that the motion of objection is admissible, the court shall issue an order withdrawing the attachment of the claim.
During the trial of the motion of objection under paragraph three, the judgement creditor may file a motion that such motion of objection is not founded and filed to delay the execution. If there is preliminary evidence showing that such motion is admissible, the court shall have the power to order the person making the objection to deposit a sum of money or furnish a guarantee to the court in an amount and within a period of time as the court sees fit, to secure the payment of compensation to the judgement creditor for damages that may be suffered by him or her as a result of the filing of the motion of objection. If the person making the objection fails to comply with the court order, the court shall issue an order disposing of the motion of objection. With respect to the money or guarantee deposited with the court, if the court finds that it is no longer necessary, it may order the refund or the termination of such guarantee.
If the court has issued an order for the third party to comply with the order of attachment and such person fails to comply with such order, the judgement creditor may apply to the court for carrying out execution against such third party as if he or she were a judgement debtor.
In the case where the motion of objection under paragraph one or paragraph two is not founded and filed to delay the execution, the judgement creditor may, within thirty days from the date on which the court issues the order of dismissal of the motion of objection, file a motion with the court for an order for the person making such objection to pay
compensation for the damage suffered by him or her. In this case, the court shall have the power to separate the trial thereof from the original case. When the court has conducted an examination and found that such motion is admissible, the court shall issue an order for the person making the objection to pay compensation in an amount as it sees fit. If such person fails to comply with the court order, the judgement creditor may apply to the court for carrying out execution against such person as if he or she were a judgement debtor.
Unofficial Translation Chaninat and Leeds Ltd. Thailand Divorce Lawyers
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