Kuwait Court of Cassation principle number 249

Summary: - Issuing orders on petitions. Impermissible except in cases where a special provision permits their issuance. Law 4 of 1961 promulgating the Notarization Law contains no provision permitting recourse to orders on petitions concerning affixing the executory formula to notarized instruments containing an obligation capable of compulsory enforcement. Its regulation of applications for a second executory copy of a notarized instrument and its stipulation that this is permissible only by a judgment of the urgent matters judge. This applies equally to applications 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 by legislation. Article 163 of the Code of Civil Procedure so provides, as it does not permit orders on petitions to be issued outside cases where a special provision permits their issuance. There is no provision in Law No. 4/1961 promulgating the Notarization Law permitting recourse to orders on petitions concerning affixing the formula to notarized instruments containing an obligation capable of compulsory enforcement. 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 by a judgment of the urgent matters judge. This requires following ordinary litigation procedures when seeking either the first or the second executory copy, so long as the law does not provide otherwise. The general rule is that actions are brought through the procedure specified in the Code of Civil Procedure, and recourse to orders on petitions is an exception applicable only within its scope, without expansive interpretation. Accordingly, it is established from the papers that the first female respondent obtained order on petition No. 437/2011 affixing the executory formula to the certified true copy of the female appellant’s acknowledgment of indebtedness in her favour 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 basis that she had lost the original acknowledgment. Since the first female respondent had no means of seeking this other than recourse to ordinary litigation procedures, rather than orders on petitions, the order challenged by the grievance must be set aside because it was issued outside the cases in which it is permitted. Since the appealed judgment departed from this view, dismissed the grievance and upheld the order challenged thereby, it must be set aside and judgment rendered as will appear in the operative part.