Kuwait Court of Cassation principle number 218

Summary: - Issuance of orders on petitions. Impermissible except in cases where a specific provision permits their issuance. Law 4 of 1961 promulgating the Notarization Law contains no provision permitting recourse to the procedure of orders on petitions concerning the affixing of the executory formula to notarized instruments containing an obligation to do something that may be compulsorily enforced. Its regulation of the demand for a second executory copy of a notarized instrument and its stipulation that this is permissible only pursuant to a judgment by the judge of urgent matters. This applies equally to demands for the first and second executory copies so long as the law does not provide otherwise. Rule: It is established that the general rule is that a judge does not exercise non-contentious judicial authority except in the cases exhaustively specified in legislation. Article 163 of the Code of Procedure so provides, as it does not permit the issuance of orders on petitions other than in cases where a specific provision permits their issuance. Since there is no provision in Law No. 4/1961 promulgating the Notarization Law permitting recourse to the procedure of orders on petitions concerning the affixing of the formula to notarized instruments containing an obligation to do something that may be compulsorily enforced, and that Law regulates only the case of delivery of a second executory copy of a notarized instrument, by providing in Article Nine that delivery of that copy shall be only pursuant to a judgment by the judge of urgent matters, this requires following the ordinary litigation procedure in demanding the first and second executory copies alike, so long as the law does not provide otherwise. This is because the general rule for actions is that they are brought by the procedure specified in the Code of Procedure, and recourse to the procedure of orders on petitions is an exception that operates only within its scope, without expansive interpretation. That being so, and it being established from the papers that the first respondent obtained Order on Petition No. 437/2011 affixing the executory formula to the certified true copy of the appellant's acknowledgment of debt in her favor and her formal undertaking to pay, notarized with the Notarization Department at the Ministry of Justice and dated 28/3/2010, bearing No. ... Volume 6, year 2010, on the basis that she had lost the original of that acknowledgment, and since the first respondent had no means of demanding this other than recourse to the ordinary litigation procedure rather than the procedure of orders on petitions, the order under grievance must be revoked because it was issued outside the cases in which it may be issued. Since the appealed judgment departed from this view and dismissed the grievance and upheld the order under grievance, it must be set aside and judgment entered as will appear in the operative part.