Mortgagees obtain unfettered order for possession–Mortgagor goes back into possession without consent–Mortgagees seek writ of restitution–County Courts Act 1959 section 74–Whether writ of restitution appropriate in county court–Writ granted notwithstanding note in Green Book–Whether appropriate case also for committal for contempt
This was an
appeal from a registrar’s decision in an ex parte application by the plaintiff
building society for a writ of restitution. The application was supported by an
affidavit which set out the following facts:
The plaintiffs
had on September 21 1977 obtained an unfettered order for possession by reason
of the default of the defendant, John Francis Morris, of his obligations under
a mortgage. Possession was delivered up to the plaintiffs under a warrant for
possession. The premises were thereupon secured against re-entry. The defendant
went back into possession without consent and failed to comply with written
demands to restore possession to the plaintiffs.
The affidavit
further recited that a warrant for possession had been issued and executed
pursuant to an order of a divorce court dated April 25 1977, in proceedings
brought by the defendant’s wife, and that in that case, also, after the warrant
had been executed, the defendant had re-entered the premises and changed the
locks.
The registrar
refused the plaintiffs’ application on the ground that ‘a writ of restitution
is not applicable in the county court.’
The plaintiffs
appealed against the registrar’s decision and also applied for the committal of
the defendant to prison for contempt of court in failing to comply with the
order for possession (notices on Forms 140 and 194 having been served upon
him).
Roger de Haar
(instructed by Tucker, Turner & Co) appeared for the plaintiffs; the
defendant did not appear and was not represented.
His Honour
JUDGE BARR held that, notwithstanding the note on p 83 of the 1978 County
Court Practice, he construed section 74 of the County Courts Act 1959 (on
the plain words of subsections (1) and (2), and particularly paragraph (a) of
subsection (1)) as giving him jurisdiction to issue a writ of restitution.
The note to
which His Honour referred is headed ‘Restitution,’ and reads, inter alia:
It is
doubtful, however, whether an order for restitution is a form of relief covered
by the above section [section 74].
Counsel cited
in argument Alliance Building Society v Austen [1951] 2 All ER
1068, where Roxburgh J held that although the ordinary remedy [in the High
Court] in such a case was an order of restitution, the court had jurisdiction
to commit for contempt in such circumstances. His Honour was satisfied that the
defendant was in contempt, and that it was an appropriate case to commit the
defendant to prison for seven days.
Order accordingly.
