Kuwait Court of Cassation principle number 243

Summary: - The particulars that must be included in the auction adjudication judgment and its operative part. Their nature. Article 276 of the Law of Procedure. - Service of that judgment. Unnecessary. Its enforcement takes place pursuant to Article 276/2 of the Law of Procedure by summoning the debtor for the day and hour fixed for delivery. Delay by the successful bidder in enforcement procedures does not affect his recovery of his entitlement to the fruits and revenues of that property from the date the judgment is rendered. Rule: It is established in this Court’s jurisprudence that the provision in Article 276 of the Law of Procedure concerning the particulars that must be included in the auction adjudication judgment and its operative part is in view of that judgment’s special nature as a means of compulsorily transferring ownership of the property from the debtor whose property has been attached to the successful bidder. Thus, once the auction adjudication judgment is rendered, there is no need to serve it in any form. Enforcement proceeds in the manner detailed in the second paragraph of that same article, by summoning the debtor for the day fixed for delivery to attend at the specified place and hour of delivery. Delay by the successful bidder in completing that summons has no effect on his demand to recover his entitlement to the fruits of the property from the date the auction adjudication judgment is rendered. This is because, once the sale has been effected—by issuance of the auction adjudication judgment—the fruits and revenues of the property belong to the successful bidder, since his personal right to the property and its fruits arises on the day the auction adjudication judgment is rendered. That is, adjudication 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 consideration of the price he paid.. Whereas the legislature, under Articles 10 and 20/1 of Decree-Law No. 35 of 978) concerning the Lease of Properties, as amended by Laws 2 of 988) and 8 of 1994, required the tenant to pay the rent due at the agreed time, or at the beginning of each month in the absence of agreement if the lease is monthly, and at the beginning of each contracted period in other cases, and granted him a grace period of twenty days during which he was permitted to deposit it with the treasury of the Enforcement Department after legally tendering it, and deemed such timely deposit a payment discharging his liability, and made failure to pay the rent on time give rise to the landlord’s right to request eviction from the leased premises together with an order requiring payment of the rent arrears due from him. Whereas the appellant’s ownership of the property in which the disputed apartment is located was established pursuant to auction adjudication judgment No. 26/2010, 87/2009 Sales, rendered 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 submit anything showing that he paid the rent for August and September 2011, either to the appellant or by depositing it with the treasury of the Enforcement Department within the prescribed time, the request to evict from the premises described in the statement of claim and the lease dated 15/7/2007, to deliver them free of occupants and belongings, and to order payment of rent arrears of KWD 800, representing the rent arrears for the period from 1/8/2011 through 30/9/2011, is therefore founded on a sound factual and legal basis and must be granted. This is not undermined by the respondent’s assertion that he paid that rent, as his assertion was a bare statement unsupported by evidence in the papers. As to the claim for rent accruing until complete eviction, since it is established in this Court’s jurisprudence that a request for eviction for non-payment of rent necessarily includes an implicit request for rescission of the contract, and the Court has concluded above that the respondent must be evicted from the premises in dispute, which implicitly includes rescission of the contract, the latter’s possession consequently becomes that of a usurper. He is therefore liable for compensation for use from 1/10/2014, which the Court assesses, in adherence to his claim, at four hundred dinars monthly until complete eviction. As the appealed judgment departed from this view, it must be set aside and judgment entered granting the appellant his claims.