Kuwait Court of Cassation principle number 9

Summary: - A judge's exercise of non-contentious jurisdiction. The general rule is that this occurs only in cases exhaustively specified by legislation. Article 163 of the Code of Procedure. - Issuance of orders on petition. Impermissible except where a special provision authorises their issuance. Law 4 of 1961 promulgating the Notarisation Law contains no provision permitting recourse to orders on petition to affix the executory formula to notarised instruments containing an obligation capable of compulsory enforcement. It regulates requests for a second executory copy of a notarised instrument and provides that this is permissible only by judgment of the urgent matters judge. This applies equally to requests for the first and second executory copies unless the law provides otherwise. Rule: It is established that the general rule is that a judge exercises non-contentious jurisdiction only in cases exhaustively specified by legislation. Article 163 of the Code of Procedure so provides, not permitting orders on petition except where a special provision authorises their issuance. There is no provision in Law No. 4/1961 promulgating the Notarisation Law permitting recourse to orders on petition to affix the formula to notarised instruments containing an obligation capable of compulsory enforcement. That Law regulates only delivery of a second executory copy of a notarised instrument, providing in Article Nine that such copy may be delivered only by judgment of the urgent matters judge. This requires ordinary litigation to be followed in requesting the first and second executory copies alike, unless the law provides otherwise. The general rule is that actions are instituted by the procedure prescribed in the Code of Procedure, and recourse to orders on petition is an exception confined to its scope, without expansive interpretation. Accordingly, the record establishes 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 favour and her official undertaking to pay, notarised at the Notarisation Department of the Ministry of Justice, dated 28/3/2010, bearing No. ... Volume 6 Year 2010, on the basis that she had lost the original acknowledgment. Since the first respondent had no avenue to seek this other than ordinary litigation, rather than orders on petition, the order challenged by grievance must be revoked as having been issued outside the cases permitting it. Since the appealed judgment departed from this view, dismissed the grievance, and upheld the challenged order, it must be reversed and judgment entered as will appear in the operative part.