Kuwait Court of Cassation principle number 126

Summary: - A judge's exercise of a non-contentious judicial function. The general rule is that this occurs only in the cases exhaustively specified in legislation. Article 163 of the Civil and Commercial Procedure Law. - Issuance of orders on petitions. Permissible only in cases where a specific provision authorizes their issuance. Law 4 of 1961 promulgating the Notarization Law contains no provision permitting recourse to orders on petitions concerning the affixing of the executory formula to notarized instruments containing an obligation to provide something capable of compulsory enforcement. It regulates requests for a second executory copy of a notarized instrument and provides that this is permissible only pursuant to a judgment of the urgent matters judge. This applies equally to requests for the first and second executory copies so long as the law does not provide otherwise. - The general rule is that actions are brought by the procedure prescribed in the Civil and Commercial Procedure Law. Recourse to orders on petitions is an exception operating within its scope. Its interpretation may not be expanded. Contravention of this constitutes an error requiring the judgment and the order challenged by grievance to be set aside. Rule: It is established that the general rule is that a judge exercises a non-contentious judicial function only in the cases exhaustively specified in legislation. Article 163 of the Civil and Commercial Procedure Law so provides, as it does not permit orders on petitions to be issued other than in cases where a specific provision authorizes their issuance. Since Law No. 4/1961 promulgating the Notarization Law contains no provision permitting recourse to orders on petitions concerning the affixing of the formula to notarized instruments containing an obligation to provide something capable of compulsory enforcement, and since that Law regulates only the delivery of a second executory copy of a notarized instrument, providing in Article Nine that such copy may be delivered only pursuant to a judgment of the urgent matters judge, this requires recourse to ordinary litigation in requesting the first and second executory copies alike, so long as the law does not provide otherwise. This is because the general rule is that actions are brought by the procedure prescribed in the Civil and Commercial Procedure Law, and recourse to orders on petitions is an exception operating only within its scope, without expansive interpretation. That being so, and since the documents establish that the first respondent in the appeal obtained Order on Petition No. 437/2011 affixing the executory formula to a true copy of the appellant's acknowledgment of indebtedness in her favor and her official undertaking to pay, notarized at the Notarization Department of the Ministry of Justice, dated 28/3/2010, and bearing No. ... Volume 6, year 2010, on the ground that she had lost the original acknowledgment, and since the first respondent in the appeal has no avenue to request this other than ordinary litigation, rather than orders on petitions, the order challenged by grievance must be set aside because it was issued outside the cases in which it is permissible. Since the appealed judgment departed from this view and dismissed the grievance and upheld the order challenged by grievance, it must be set aside and judgment rendered as will appear in the operative part.