On 03 Sep 2003, eas-lab@absamail.co.za appeared to be trying to ask:
* * * Is there a buzz-word or phrase in law
which relates to . . . [a case in which] a debtor
who 'missed' a summons [and who established that
it was not served upon him as required by law and
so] failed to get his opportunity to defend his charge
and suffered a default judgment [and who thereupon
availed himself of] Rules [which] allow . . . a recission
/vacation . . . [or] condonation for lateness . . . (if eg
[the default was] caused by no fault of the defendant)
[and also that he probably has a well-merited defense
so that the court directs that there shall be a trial
but in circumstances in which the] default judgement
. . . [has already been] execut[ed and] defendant's
assets . . . [turned over to the judgment-creditor]?
In [such a] case is it possible to bring the defendant
"back to life"?
Query whether -- anyway, you might want to try to verify whether --
"restoration" or "restitution" (or your jurisdiction's functionally
equivalent like term) is the "buzz-word" you are here wondering about.
[T]here is apparently no rule to delay the sale
in execution, until it is KNOWN that all appeal
/rescission routes have been depleted.
In many courts in numerous countries/states, a defendant against whom
a default judgment has been granted will (more or less: routinely) be
granted a temporary stay against its enforcement providing that he
moves in timely fashion to demonstrate factually and legally either a
complete lack (e.g., by reason of complete non-service despite an
affidavit or other claimed certification/proof of service [falsely]
stating otherwise) of service of process or or some form of defect in
or means of such service which warrants ruling that the default is
excusable if defendant also establishes that he probably has a
well-merited defense (in other words, satisfies what you have more
than once said is the law in your country).
A stay against execution of a judgment (whether or not granted on
default) also commonly is obtainable on the filing of an approrpriate
bond or comparable security which, however, will not be turned over to
the judgment-creditor unless/until the defendant fails to prevail on
the merits.
You have never explained in any of your postings about your lawsuit
whether you even (ever) timely sought a stay of execution or, if not,
why not, or why you did not at least try to take advantage of whatever
if your country's/court's version of
stay-in-exchange-of-security-filing.
Thanks for any pointers,
