(1) Appoint a receiver for each property, whether before the judgment is rendered and afterwards;
(2) remove any person from possession or custody of property;
(3) make the property available for the holding, custody or management of the receiver;
(4) to grant to the receiver the powers held by the owner of the property, in whole or in part, as it appears to the court or the registrar as aforesaid, with regard to the filing and defense thereof, Realization of Property, manage, maintain, preserve and improve it, collect rent and profits from the property and how to use them, and sign all documents.
(b) The court or the registrar hearing the application shall take into account the amount of debt that the applicant is claiming, the amount that the receiver can obtain according to the estimate and the estimated expenses involved in his appointment, and he may, if he deems it so, order an investigation into these or other matters prior to the appointment."
- The Place of Regulation 388, within the framework of the SDA regulations, is within the framework of the Sign III (Titled "Appointment of a Receiver"), in Episode 28, with the title "Temporary relief." However, there is no dispute that the appointment of a receiver, as it emerges from the words emphasized (in the previous paragraph) of Regulation 388(a)(1), also applies to a situation in which a judgment has already been rendered, as in the case before me.
This was noted by President Meir Shamgar (who according to him, the justices - who were later appointed as vice presidents, each at his own time - Theodor Or and Eliyahu Matza) agreed in one of the judgments, which is often quoted regarding the appointment of a receiver to carry out a judgment (Civil Appeal 447/92 Henry Roth v. Intercontinental Credit Corporation, IsrSC 49(2) 102, at pp. 111-112; hereinafter - "The Roth Case"):
"This regulation, which originates in the laws of equity, is incorporated into the chapter of temporary remedies in the regulations. However, despite the Regulation's location as part of the interim proceedings, the court is authorized by virtue of Regulation 338 to appoint a receiver even as a permanent remedy after the judgment is rendered (338(a)(1)). The functions of this receiver are completely different from those of his colleague who was appointed to a temporary position in connection with the hearing; While the purpose of appointing the temporary receiver is to take measures to safeguard and manage property until the dispute between the parties is resolved (Civil Appeal Authority 7/89 Rotem Insurance Company in Tax Appeal v. Nesher Insurance Agency Ltd., IsrSC 42(4) 683 [hereinafter: "The Rotem Case"]), the purpose of the receiver, who is appointed after the judgment is rendered, is to serve as an alternative to execution proceedings. This proceeding is commonly referred to as equitable execution, and has its roots in the English proceeding, which confers protection on a person who has failed to exercise his right against the debtor in ordinary proceedings in common law (Y. Sussman, Civil Procedure (Aminon, 6th edition, edited by S. Levin, 1990) 585)."
- President Shamgar reviews the remedy mentioned in English law, including: its development, its boundaries, and the timing of its application. In the middle bolt of the precedents in English law, it was agreed by President Shamgar, in the manner in which a receiver can be appointed as a remedy of integrity, "Only when it becomes clear that there is an obstacle to the implementation of the judgment by ordinary means... A court was not authorized to appoint a receiver in good faith, only because in the circumstances of the case it appears that this is the more convenient and just procedure... However, the courts of honesty granted the request to appoint a receiver even in the case of assets that can be realized in a regular proceeding, but in respect of which it was made clear to the court that the debtor is liable to thwart the winner's entitlement by waiving, conversion, is the sale of his rights." (Name, on p. 112, between the letters C-E).
- According to an English statute, from 1873, there is no need, as a prerequisite, for the granting of relief of the appointment of a receiver, that the plaintiff must prove that he has made attempts to collect the debt in ordinary proceedings, since "When it is clear that the execution proceedings will be futile, there is no need or reason to send the debtor to try his luck in this way." (Name, Name, in front of the letter Z). Therefore, if, from the circumstances of the case, it can be concluded that ordinary realization proceedings will not be effective, "Because then this is sufficient to justify the application to the Execution Office of Good Conduct, without the need to make any formal attempt at the level of the regular proceeding." (Name, at pp. 112-113).
- Indeed, in a ruling that preceded about half a century after the Roth, there is a precedent in which the Supreme Court did not require that the winner take execution proceedings before appointing a receiver for the purpose of "Execution of Honesty". In the same case (Civil Appeal 329/67 Bluma Cohen-Reich (Holtzman) v. Shlomo Eiger, IsrSC 22(1) 91; Hereinafter - "Parashat Cohen-Reich"), the appellant was both a debtor and an estate manager, and did not cooperate in realizing a debt of the creditor (the respondent). From the evidence, it emerges that the appellant did everything in her power, and more precisely, ceased to the best of her ability, in order to prevent the division of the estate, and to enable the execution of the judgment.
In the same case, Judge Haim Cohen (who, according to him, Justices Vitkon and Mani joined) said the following (ibid., paragraph 2 of the judgment, p. 92, opposite the letter Z - p. 93, opposite the letter B):