Kuwait Court of Cassation principle number 98

Summary: - A judge's exercise of a non-contentious judicial function. The general principle is that this occurs only in the cases exhaustively specified in legislation. Article 163 of the Code of Civil Procedure. - Issuance of orders on petitions. Permissible only in cases where a special provision authorizes their issuance. Law 4 of 1961 promulgating the Notarization Law contains no provision permitting recourse to orders on petitions concerning the affixing of the executory formula to notarized instruments containing an obligation in respect of something capable of compulsory enforcement. Its regulation of requests for a second executory copy of a notarized instrument and its stipulation that this is permissible only pursuant to a judgment of the urgent matters judge. This applies equally to requests for the first and second executory copies, so long as the law does not provide otherwise. - The general principle governing actions is that they are instituted in the manner prescribed in the Code of Civil Procedure. Recourse to orders on petitions. An exception operating within its scope. It must not be interpreted expansively. Contravention thereof: an error requiring reversal of the judgment and revocation of the order challenged by grievance. Rule: It is established that the general principle is that a judge exercises a non-contentious judicial function only in the cases exhaustively specified in legislation. Article 163 of the Code of Civil Procedure so provides, as it does not permit the issuance of orders on petitions other than in cases where a special provision authorizes their issuance. Since there is no provision in Law No. 4/1961 promulgating the Notarization Law permitting recourse to orders on petitions concerning the affixing of the formula to notarized instruments containing an obligation in respect of something capable of compulsory enforcement, and that law regulated only the delivery of a second executory copy of a notarized instrument, by providing in Article 9 that such a copy may be delivered only pursuant to a judgment of the urgent matters judge, this requires following the ordinary litigation procedure in requesting the first and second executory copies alike, so long as the law does not provide otherwise. This is because the general principle governing actions is that they are instituted in the manner prescribed in the Code of Civil Procedure, and recourse to orders on petitions is an exception that operates only within its scope, without expansive interpretation. That being so, and as the documents establish 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 indebtedness in her favour and her formal 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 ground that she had lost the original acknowledgment, and since the first respondent had no means of requesting this other than recourse to ordinary litigation rather than orders on petitions, the order challenged by grievance must be revoked for having been issued outside the cases in which it is permitted. Since the appealed judgment departed from this view and ruled to dismiss the grievance and uphold the order challenged by grievance, it must be reversed and judgment rendered as will appear in the operative part.