Debtors (Scotland) Act 1987

9 Effect of time to pay order on diligence. S

(1) While a time to pay order is in effect, it shall not be competent—

(a) to serve a charge for payment; or

(b) to commence or execute any of the following diligences—

(i) an arrestment and action of furthcoming or sale;

(ii) a poinding and sale;

(iii) an earnings arrestment;

(iv) an adjudication for debt,

to enforce payment of the debt concerned.

(2) On making a time to pay order, the sheriff in respect of the debt—

(a) shall make an order recalling any existing earnings arrestment;

(b) where the debt is being enforced by a conjoined arrestment order, shall—

(i) if he, or another sheriff sitting in the same sheriff court, made the conjoined arrestment order, vary it so as to exclude the debt or, where no other debt or maintenance is being enforced by the order, recall the order;

(ii) if a sheriff sitting in another sheriff court made the conjoined arrestment order, require intimation of the time to pay order to be made to a sheriff sitting there who shall so vary or, as the case may be, recall the conjoined arrestment order;

(c) where an action of adjudication for debt has been commenced, shall make an order prohibiting the taking of any steps other than the registration of a notice of litigiosity in connection with the action, the obtaining and extracting of a decree in the action, the registration of an abbreviate of adjudication and the completion of title to property adjudged by the decree;

(d) may make an order recalling a poinding;

(e) may make an order recalling or restricting any arrestment other than an arrestment of the debtor’s earnings in the hands of his employer.

(3) If a poinding or such an arrestment as is mentioned in subsection (2)(e) above is in effect, the sheriff may order that the making of a time to pay order or the recall of the poinding or the recall or restriction of the arrestment shall be subject to the fulfilment by the debtor of such conditions as the sheriff thinks fit.

(4) Where the sheriff does not exercise the powers conferred on him by subsection (2)(d) or (e) above to recall a diligence, he shall order that no further steps shall be taken by the creditor in the diligence concerned other than, in the case of a poinding, applying for an order under section 21(1) of this Act or making a report of the execution of the poinding under section 22 of this Act.

(5) Any order made under subsection (2) or (4) above shall specify the diligence in relation to which it is made.

(6) The sheriff shall not make an order under subsection (2)(d) or (e) above without first giving the creditor an opportunity to make representations.

(7) The sheriff clerk shall, at the same time as he makes intimation under section 7(4)(a) of this Act—

(a) intimate any order under subsection (2) or (4) above to the debtor and the creditor and the order shall come into effect on such intimation being made to the creditor;

(b) intimate any order under subsection (2)(a) or (b) above to the employer.

(8) While an order under subsection (4) above is in effect it shall not be competent to grant—

(a) a warrant (other than an order under section 21(1)(b) of this Act) to sell articles which have been poinded;

(b) a decree of furthcoming or sale of arrested property.

(9) For the purposes of section 27 of this Act, the period during which an order under subsection (4) above is in effect shall be disregarded in calculating the period during which a poinding to which the order applies remains in effect.

(10) Where, before the making of a time to pay order in respect of a debt, a charge to pay that debt has been served—

(a) if the period for payment specified in the charge has not expired, the charge shall lapse on the making of the order;

(b) if that period has expired, nothing in the time to pay order nor in any order under this section shall affect retrospectively the effect of the charge in the constitution of apparent insolvency within the meaning of section 7 of the M1 Bankruptcy (Scotland) Act 1985.

(11) If, when a time to pay order in relation to a debt is made, any diligence enforcing it is in effect which is not specified in an order under subsection (2) or (4) above, the diligence shall remain in effect unless and until it is recalled under section 10(4) of this Act.

(12) Where a time to pay order is recalled or ceases to have effect, otherwise than—

(a) under section 12(2)(a) of this Act; or

(b) by the debt payable under the order being paid or otherwise extinguished,

the debt in so far as it remains outstanding (including interest thereon, whether or not awarded as a specific sum in the decree) shall, subject to any enactment or rule of law to the contrary, become enforceable by any diligence mentioned in subsection (1)(b) above; and, notwithstanding section 25 of this Act, in this subsection “diligence” includes, where the debt was, immediately before the time to pay order was made, being enforced by a poinding in any premises, another poinding in those premises.

Marginal Citations

M1 1985 c. 66.