Debtors (Scotland) Act 1987
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Change 1
35 Alteration of arrangements for sale.
(1) Where, for any reason for which neither the creditor nor the officer of court is responsible, the arrangements made for the warrant sale cannot be implemented in accordance with the provisions of the warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf, grant a variation of the warrant of sale. (2) Subject to subsection (3) below, the sheriff may, on his own initiative or on an objection by the debtor, refuse to grant an application under subsection (1) above on the ground that— (a) the poinding is invalid or has ceased to have effect; or (b) the proposed variation is unsuitable. (3) It shall not be competent for the sheriff to refuse to grant an application under subsection (1) above on the ground that any poinded article is exempt from poinding under section 16 of this Act. (4) Section 32 of this Act shall apply to a warrant of sale as varied under this section. (5) A creditor or officer of court who makes an application under subsection (1) above shall at the same time— (a) serve on the debtor a copy thereof together with a notice in the form prescribed by Act of Sederunt, informing him that he may object to the application within 7 days after the date of such service; and (b) serve on any other person in possession of the poinded articles a copy of the application. (6) The sheriff shall not— (a) refuse to grant a variation under subsection (1) above on his own initiative; or (b) dispose of an application under that subsection where the debtor has objected thereto in accordance with subsection (5) above, without first giving the parties an opportunity to be heard. (7) On granting a variation under subsection (1) above, the sheriff may make such consequential orders as he thinks fit including, where appropriate— (a) an order requiring service on the debtor, and on any other person in possession of the poinded articles, of the warrant of sale as varied; (b) the retaking of any steps in the diligence which have already been taken. (8) Where the sheriff refuses to grant a variation under subsection (1) above, the sheriff clerk shall intimate that refusal to the debtor and to any other person in possession of the poinded articles. (9) Subject to subsection (10) below and without prejudice to section 36(3) of this Act, after intimation has been given under section 34 of this Act to the debtor of the date arranged for the warrant sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or officer of court shall not be entitled to arrange a new date for the sale or for such removal. (10) Where, for any reason for which neither the creditor nor the officer of court is responsible, it is not possible for the warrant sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the officer of court to arrange a new date in accordance with subsection (11) below, and the officer of court shall intimate the new date to the debtor and to any other person in possession of the poinded articles. (11) The new date arranged under subsection (10) above— (a) shall not in any case be less than 7 days after the date of intimation under that subsection; and (b) in the case of a new date arranged for a warrant sale, shall be a date within the period specified in the warrant of sale as the period within which the sale is required to be held.
35 Alteration of arrangements for sale.
(1) Where, for any reason for which neither the creditor nor the officer of court is responsible, the arrangements made for the warrant sale cannot be implemented in accordance with the provisions of the warrant of sale, the sheriff may, on an application by the creditor or by the officer of court on his behalf, grant a variation of the warrant of sale. (2) Subject to subsection (3) below, the sheriff may, on his own initiative or on an objection by the debtor, refuse to grant an application under subsection (1) above on the ground that— (a) the poinding is invalid or has ceased to have effect; or (b) the proposed variation is unsuitable. (3) It shall not be competent for the sheriff to refuse to grant an application under subsection (1) above on the ground that any poinded article is exempt from poinding under section 16 of this Act. (4) Section 32 of this Act shall apply to a warrant of sale as varied under this section. (5) A creditor or officer of court who makes an application under subsection (1) above shall at the same time— (a) serve on the debtor a copy thereof together with a notice in the form prescribed by Act of Sederunt, informing him that he may object to the application within 7 days after the date of such service; and (b) serve on any other person in possession of the poinded articles a copy of the application. (6) The sheriff shall not— (a) refuse to grant a variation under subsection (1) above on his own initiative; or (b) dispose of an application under that subsection where the debtor has objected thereto in accordance with subsection (5) above, without first giving the parties an opportunity to be heard. (7) On granting a variation under subsection (1) above, the sheriff may make such consequential orders as he thinks fit including, where appropriate— (a) an order requiring service on the debtor, and on any other person in possession of the poinded articles, of the warrant of sale as varied; (b) the retaking of any steps in the diligence which have already been taken. (8) Where the sheriff refuses to grant a variation under subsection (1) above, the sheriff clerk shall intimate that refusal to the debtor and to any other person in possession of the poinded articles. (9) Subject to subsection (10) below and without prejudice to section 36(3) of this Act, after intimation has been given under section 34 of this Act to the debtor of the date arranged for the warrant sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or officer of court shall not be entitled to arrange a new date for the sale or for such removal. (10) Where, for any reason for which neither the creditor nor the officer of court is responsible, it is not possible for the warrant sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the officer of court to arrange a new date in accordance with subsection (11) below, and the officer of court shall intimate the new date to the debtor and to any other person in possession of the poinded articles. (11) The new date arranged under subsection (10) above— (a) shall not in any case be less than 7 days after the date of intimation under that subsection; and (b) in the case of a new date arranged for a warrant sale, shall be a date within the period specified in the warrant of sale as the period within which the sale is required to be held.
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