Kuwait Court of Cassation principle number 484

Summary: - Grounds of nullity relating to procedures preceding an auction sale. The legislature divided them into 2 categories: the first concerns nullity of the announcement of the sale, such as nullity in publication procedures; the second concerns 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 method in this case for notifying the sales judge that the action has been brought. The reason therefor. To enable him to act in good 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 3 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 from the face of the documents. Its implication. He grants the claimant’s request to stay the sale until the competent court determines the merits of the dispute. Establishment that these grounds are not serious. Its effect. He orders continuation of the sale. His judgment in the first category may not be challenged by any means, and his judgment in the second category, in either case, is an interim judgment issued by him as a judge of urgent matters and is not subject to challenge, contrary to the general rule governing urgent-matters adjudication. - Judgments issued by the urgent-matters judiciary. Their binding effect is temporary. The reason therefor. They examine the dispute from the face of the documents without prejudice to the right. Its implication. The trial court is not bound by them when determining the substance of the right. - The interim dispute determined by the urgent judgment. It may not be raised anew. The condition therefor. The position of the litigants and the circumstances culminating in the judgment remain exactly the same, without any change. The reason therefor. The urgent judgment places the parties to the litigation in a fixed 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. Example. - The sales judge’s judgment, in his capacity as a judge of urgent matters, rejecting the objections and proceeding with the procedures, by a final judgment having the force of res judicata. The nature of this judgment. It is not altered by the court’s use of the phrase (the court decided) instead of (the court adjudged). The reason therefor: what matters is the actual reality and what the judgment determined, not the description given by the court. Submission of the same statement of objections to the same circuit. Its ruling accepting the objections and staying the procedures constitutes determination of the statement contrary to a prior judgment issued between the same litigants, in the same circumstances, and having the force of res judicata. Its implication: it may be challenged by cassation. Rule: It is established in the jurisprudence of this Court that the provision in the final paragraph of Article 152 of the Law of Procedure that “The litigants may also challenge by cassation any final judgment—whatever the court that issued it—which determined a dispute contrary to another judgment previously issued between the same litigants and having 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 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 by cassation is then permissible, whatever the dispute determined or the court that issued the judgment. It is also established that Article 271 of the Law of Procedure provides: “Interested persons must raise grounds of nullity in the announcement prescribed in Articles 266 and 268 by a statement filed with the registry of the Court of First Instance at least 3 days before the hearing fixed for the sale, otherwise 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 opening the bidding, and his judgment may not be challenged by any means. If he rules that the announcement procedures are void, he shall postpone the sale to a day he specifies and order those procedures to be repeated. If he rules to reject the request for nullity, he shall order the bidding to proceed immediately. The debtor, possessor, real surety, and creditors referred to in Article (265/2) must also raise the other grounds of nullity relating to the procedures preceding the sale hearing, as well as objections to the conditions of sale, at least 10 days before the date of that hearing, otherwise the right to raise them shall lapse. This shall be by an action brought through the ordinary procedures before the competent court. The person bringing it must deposit a copy of its statement of claim with the registry of the Court of First Instance at least 3 days before the hearing fixed for the sale. The sales judge—in his capacity as a judge of urgent matters—shall, at the request of the person bringing the aforementioned action, order the sale to be stayed or continued according to his assessment of whether those grounds are serious or not, and his judgment shall not be subject to challenge. If he orders continuation of the sale, he shall order the bidding to proceed immediately.” This indicates—as stated in the explanatory memorandum to the Law—that the legislature divided grounds of nullity relating to procedures preceding the sale into 2 categories: a category relating to nullity of the announcement of the sale, such as nullity in publication procedures, and another relating to nullity of the other procedures preceding the sale hearing, with objections to the conditions of sale governed by the same rules. It assigned the first category to the jurisdiction of the sales judge. As for the second category of nullity of procedures preceding the sale hearing, as well as objections to the conditions of sale, the legislature assigned jurisdiction to hear them to the court competent to hear enforcement disputes. In this case, it prescribed a method for notifying the sales judge that the action has been brought, enabling him to act in good time to avert a sale that might ultimately be annulled. The legislature therefore 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 3 days before the sale hearing and to request therein a judgment staying the sale. Whenever the seriousness of the grounds in dispute is apparent to the sales judge from the face of the documents, he shall grant the claimant’s request to stay the sale until the competent court determines the merits of the dispute. If, however, it is apparent to him that those grounds are not serious, he shall order continuation of the sale. His judgment in the first category may not be challenged by any means. His judgment in the second category—in either case—is an interim judgment issued by him as a 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 regarding judgments issued by the urgent-matters judiciary is that they have temporary binding effect, since they examine the dispute from the face of the documents without prejudice to the right. They therefore do not bind the trial court when it determines 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 position of the litigants and the circumstances culminating in the judgment remain exactly the same, without any change. In that situation, the urgent judgment places the parties to the litigation in a fixed 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 whereas it is established from the documents that the respondent, in his stated capacity, submitted on 2/3/2014 a statement of objections to the procedures preceding the sale hearing, requesting primarily a judgment terminating the sale procedures and, alternatively, staying the sale procedures until Objections Action No. 1380 of 2014, Plenary Commercial, was determined by a final, irrevocable judgment, the sales judge, in his capacity as a judge of urgent matters, ruled to reject 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 phrase “the court decided” rather than “the court adjudged,” since what matters is the actual reality and what the judgment determined, not the description given by the court. Accordingly, what the court concluded in this respect is, in substance, an adjudication. Since the respondent, in his stated capacity, submitted the same statement of objections to the same circuit on 27/4/2014, and it 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, Plenary Commercial, was determined by a final judgment, the challenged judgment determined the latest statement of objections contrary to a prior judgment issued between the same litigants, in the same circumstances, and having the force of res judicata. It may therefore be challenged by cassation, and the plea raised by the respondent, in his stated capacity, that the challenge is impermissible is unfounded.