Kuwait Court of Cassation principle number 131

Summary: - The particulars that an auction-award judgment and its operative part must contain. Their nature. Article 276 of the Code of Procedure. - Service of that judgment. Not required. Its enforcement is effected pursuant to Article 276/2 of the Code of Procedure by summoning the debtor for the specified day and hour of delivery. Delay by the successful bidder in enforcement procedures does not affect his obtaining his entitlement to the fruits and revenues of that property from the date the judgment is issued. - Award of the auction in a compulsory sale. Effect thereof. Transfer of ownership of the thing sold from the debtor or possessor to the successful bidder in return for the price he paid. - The tenant's obligation to pay rent. It must be performed at the agreed time, or at the beginning of each month in the absence of agreement if the tenancy is monthly, or at the beginning of each contracted period. Articles 10 and 20/1 of Decree-Law 35 of 1978, or deposit of the rent with the treasury of the Enforcement Department. Condition of this deposit: lawful tender of the rent and its being made within twenty days from the date the rent falls due. - A request for eviction for non-payment of rent necessarily includes an implied request for rescission of the contract. Meaning thereof. The tenant's possession is regarded as that of a usurper from the date of the eviction judgment. Effect thereof. Requiring him to pay compensation for use until eviction is completed. Rule: It is established in the jurisprudence of this Court that Article 276 of the Code of Procedure, in prescribing the particulars that the auction-award judgment and its operative part must contain, does so in view of the special nature of that judgment as a means of compulsorily transferring ownership of the property from the debtor against whom attachment has been levied to the successful bidder. Accordingly, once the judgment awarding the auction is issued, there is no need for service of it in any form, and enforcement proceeds in the manner detailed in the second paragraph of the same Article, by summoning the debtor for the day specified for delivery to attend at the specified place and hour of delivery. Delay by the successful bidder in completing this summons has no effect on his request to obtain his entitlement to the fruits of the property from the date the auction-award judgment is issued. This is because, once the sale has been effected—by issuance of the auction-award judgment—the fruits and revenues of the property belong to the successful bidder, since his personal right to the property and its fruits arises from the day the auction-award judgment is issued. That is, the award of the auction in a compulsory sale entails transfer of ownership of the thing sold from the debtor or possessor to the successful bidder in return for the price he paid. Whereas the legislature, under Articles 10 and 20/1 of Decree-Law No. 35 of 978) concerning the Lease of Real Estate, as amended by Laws 2 of 988) and 8 of 1994, required the tenant to pay rent due at the agreed time, or at the beginning of each month in the absence of agreement if the tenancy is monthly, and at the beginning of each contracted period in other cases, and granted him a twenty-day grace period during which it permitted him to deposit it with the treasury of the Enforcement Department after lawfully tendering it, and regarded such timely deposit as payment discharging his liability, and made failure to pay rent on time give rise to the landlord's right to request eviction from the leased premises while requiring the tenant to pay the rent arrears due from him. Whereas the appellant's ownership of the property containing the apartment in dispute has been established under auction-award judgment No. 26/2010, 87/2009 Sales, issued on 8/11/2010, and he notified the respondent of the transfer of ownership to him by Notice No. 111661950 dated 4/8/2011, but the latter did not produce anything demonstrating payment of the rent for August and September 2011, whether to the appellant or by deposit with the treasury of the Enforcement Department within the prescribed time, the request for eviction from the premises described in the statement of claim and the lease dated 15/7/2007, delivery thereof free of occupants and belongings, and an order to pay rent arrears of KWD 800, representing rent arrears for the period from 1/8/2011 through 30/9/2011, is founded on a sound basis in fact and law and must be granted. This is not undermined by the respondent's claim that he paid that rent, since his allegation was a bare assertion unsupported by evidence in the papers. As to the request for rent subsequently accruing until eviction is completed, since it is established in the jurisprudence of this Court that a request for eviction for non-payment of rent necessarily includes an implied request for rescission of the contract, and the Court has concluded above that the respondent should be evicted from the premises in dispute, which implicitly includes rescission of the contract, the latter's possession therefore becomes that of a usurper. He is consequently liable for compensation for use as from 1/10/2014, which the Court assesses, in adherence to his request, at four hundred dinars monthly until eviction is completed. Since the judgment under appeal departed from this view, it must be set aside and judgment entered for the appellant granting his requests.