Kuwait Court of Cassation principle number 220

Summary: - Grounds of nullity connected with the procedures preceding sale by auction. The legislature divided them into two categories: the first relates to the nullity of the announcement of the sale, such as nullity in publication procedures. The second concerns the nullity of the other procedures preceding the sale hearing, and objections to the conditions of sale are governed by the same rules. The sales judge has jurisdiction over the first category, and the court competent to hear enforcement disputes has jurisdiction over the second category. The legislature prescribed a procedure in this case for informing the sales judge that the action has been brought. The reason therefor. To enable him to act in due time to avert a sale that might ultimately be annulled. How this is done. The person bringing that action must deposit a copy of its statement of claim with the registry of the court to which the sales judge belongs at least three days before the sale hearing and request therein a judgment staying the sale. The seriousness of the grounds in dispute being apparent to the sales judge on the face of the documents. Its effect. His judgment granting the applicant's request to stay the sale until the competent court determines the merits of the dispute. Establishment that those grounds are not serious. Its effect. His judgment directing continuation of the sale. His judgment in the first category is not subject to challenge by any means, and his judgment in the second category, in both cases, is an interim judgment issued by him in his capacity as judge of urgent matters, not subject to challenge, contrary to the general rule governing urgent-matters adjudication. Rule: It is established—in the jurisprudence of this Court—that the provision in the final paragraph of Article 152 of the Code of Procedure that "The litigants may also challenge by cassation any final judgment—whatever the court that issued it—that determined a dispute contrary to another judgment previously issued between the same litigants and having acquired the force of res judicata" indicates that the legislature permitted challenges by cassation against final judgments—whatever the court that issued them—if they determined a dispute contrary to another judgment previously issued between the same litigants and having acquired the force of res judicata, where the issue is the same in both actions, in that it was a matter of debate between the parties in the first action, its truth was settled between them by the first judgment, and it is itself the basis of what either party claims against the other in the second action. A challenge to it by cassation is then permissible, whatever the dispute it determined or the court that issued it. It is also established that the provision in Article 271 of the Code of Procedure that "Interested persons must present grounds of nullity in the announcement provided for in Articles 266 and 268 by a declaration at the registry of the Court of First Instance at least three days before the hearing fixed for the sale, failing which the right to raise them shall lapse. The sales judge shall rule on the aforementioned grounds of nullity on the day fixed for the sale before the bidding opens, and his judgment shall not be subject to challenge by any means. If he rules that the announcement procedures are void, he shall adjourn the sale to a day he specifies and order that those procedures be repeated. If he dismisses the application for nullity, he shall order the auction to proceed immediately. The debtor, the possessor, the in rem surety, and the creditors referred to in Article (265/2) must also present the other grounds of nullity relating to the procedures preceding the sale hearing, as well as grounds of objection to the conditions of sale, at least ten days before the date of that hearing, failing which the right to present them shall lapse. This shall be by an action brought through the ordinary procedures before the competent court, and the person bringing it must deposit a copy of its statement of claim with the registry of the Court of First Instance at least three days before the hearing fixed for the sale. The sales judge—in his capacity as judge of urgent matters—shall, upon the request of the person bringing the aforementioned action, rule to stay the sale or to continue it according to whether he finds those grounds serious or not serious, and his judgment shall not be subject to challenge. If he rules that the sale shall continue, he shall order the auction to proceed immediately" indicates—as stated in the explanatory memorandum to the Law—that the legislature divided grounds of nullity connected with the procedures preceding the sale into two categories: one relating to the nullity of the announcement of the sale, such as nullity in publication procedures, and another concerning the nullity of the other procedures preceding the sale hearing, with grounds of objection to the conditions of sale governed by the same rules. It placed the first category within the jurisdiction of the sales judge. As for the second category, concerning nullity of the procedures preceding the sale hearing and grounds of objection to the conditions of sale, the legislature assigned jurisdiction to hear it to the court competent to hear enforcement disputes, and prescribed a procedure in this case for informing the sales judge that the action has been brought, so as to enable him to act in due time to avert a sale that might ultimately be annulled. The legislature required the person bringing that action to deposit a copy of its statement of claim with the registry of the court to which the sales judge belongs at least three days before the sale hearing, and to request therein a judgment staying the sale. Whenever the seriousness of the grounds in dispute becomes apparent to the sales judge—on the face of the documents—he shall rule to grant the applicant's request to stay the sale until the competent court determines the merits of the dispute. If, however, it becomes apparent to him that those grounds are not serious, he shall rule that the sale is to continue. His judgment in the first category is not subject to challenge by any means. His judgment in the second category—in both cases—is an interim judgment issued by him in his capacity as judge of urgent matters, but, contrary to the general rule governing urgent-matters adjudication, it is not subject to challenge. It is also established that the general rule concerning judgments issued by the urgent-matters judiciary is that they have provisional binding authority, since they examine the dispute on the face of the papers without prejudice to the right, and therefore do not bind the court hearing the merits when determining the substance of the right. However, this does not mean that the interim dispute determined by the urgent judgment may be raised anew where the litigants' positions and the circumstances that culminated in the judgment remain precisely the same and have undergone no change. In that case, the urgent judgment places both parties to the litigation in a settled position that must be respected by virtue of res judicata in relation to the same circumstances that necessitated it and the same subject matter examined in the previously issued judgment. That being so, and it being established from the papers that the respondent, in his capacity, submitted on 2/3/2014 a declaration of objections to the procedures preceding the sale hearing, in which he requested, principally, a judgment terminating the sale procedures and, alternatively, a stay of the sale procedures until Objections Action No. 1380 of 2014, Commercial, Court of First Instance, was determined by a final and conclusive judgment, the sales judge, in his capacity as judge of urgent matters, ruled to dismiss the objections and proceed with the procedures by a final judgment having the force of res judicata. This is not altered by the court's use of the expression "the court decided" rather than "the court adjudged," since what matters is the true state of affairs and what the judgment ruled, not how the court described it. Accordingly, the court's conclusion in this respect is, in its true nature, an adjudication. Since the respondent, in his capacity, submitted on 27/4/2014 the same declaration of objections to the same circuit, which ruled at the hearing of 22/5/2014 to admit the objection as to form and, on the merits, to stay the procedures until Action No. 1380 of 2014, Commercial, Court of First Instance, was determined by a final judgment, the challenged judgment determined the latest declaration of objections contrary to a prior judgment issued between the same litigants, in the same circumstances, and having the force of res judicata. Accordingly, it may be challenged by cassation, and the plea raised by the respondent, in his capacity, that the challenge is impermissible is unfounded.