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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V10) 1 CLR 13
1910 November 21
[TYSER, C.J. AND BERTRAM, J.]
JOSEPH CIRILLI AND SONS
v.
KYPRIANO CHRISTODOULOU,
ANASTASI PARASKEVA AND
THE HEIRS OF IANNI CHRISTODOULOU.
PRESCRIPTJON-CLAIM FOR EXECUTION OF JUDGMENT AGAINST IMMOVEABLES -INTERRUPTION OF PRESCRIPTION-" CLAIM IN THE PRESENCE OF TEE JUDGE" MEJELLE, ARTS. 1660, 1666.-
The "claim in the presence of the Judge" which has the effect of interrupting the running of a prescription under Art. 1666 of the Mejelie, means the claim itself in the proceedings in question.
The running of the prescription against the claim is not interrupted by the fact that a previous claim in the same matter was made, but was disposed of or not, or not pressed.
A claim to enforce a judgment against immoveables is prescribed after the lapse of 15 years from the date of judgment, notwithstanding the fact that a previous claim of the same nature may have been made and disposed of in the interval.
This was an appeal from the District Court of Larnaca. The action was brought on the 10th October, 1888, and judgment was given on the 30th November, 1888.
The Plaintiffs were Joseph Cirilli & Sons of Larnaca. The Defendants are Kypriano Christodoulou, Yanni Christodoulou, and Anastasi Paraskeva of Ora, the first as a principal debtor, the others as guarantors.
Yanni Christodoulou died in 1892 and his heirs were added as Defendants in his place.
On the 28th October, 1909, the application of the Plaintiffs for the sale of the immoveable property of Yanni Christodoulou deceased now in the hands of his heirs was dismissed. It was against the order dismissing that application that this appeal was brought.
The judgment of the District Court was as follows:
"In 1888 the original debt was merged in a judgment and a judgment "debt arose in favour of Plaintiff and against 3 persons jointly and "severally, of whom Yanni Christodoulou was one.
"No proceedings had been taken to enforce this debt against Yanni "since 1888 and this application will not be granted (Mej. 1660) unless "something has happened to keep alive the right of the Plaintiff.
"It is extremely probable that Plaintiff who has for so long omitted "to take any proceedings against two solvent debtors had for some "reason, abandoned his right against them. The only proceeding "that has happened affecting Yanni or his heirs is an application "in 1898 to amend the title of the action by substituting Yanni's "heirs after his death. This application seems to have been made "for the sake of form.
"Crambe, J., was asked to grant a writ of execution against "immoveables of Kypriano and he required the title to be amended. "The Defendants made no objection and did not attend. They "could not have objected and the proceedings did not affect them. "This proceeding did not seem to us to come under any head of matters "which prevent the prescription running."
Neoptolemos Paschales for the Appellants. Certain intermediate proceedings have been overlooked. In October, 1900, the Plaintiffs applied for the execution of the judgment against the immoveables of the principal debtor, Kypriano, and the present respondent lanni appeared in the proceedings. Again on February 22nd, 1901, the Plaintiffs took out a summons demanding execution of the judgment against the immoveables of all three Defendants, and the two present respondents appeared in Court in answer to the summons. It is true that the only application actually made in Court, and then granted, was for the sale of a property belonging to Kypriano, but these proceedings constitute a claim in the presence of the Judge within the meaning of. Art. 1666 of the Mejelle and interrupt the running of the prescription.
Artemis for the Respondent, lanni Christodoulou. The real application in these proceedings was against Kypriano. For over 15 years no claim has ever been made to enforce this judgment against my client.
The Court dismissed the appeal.
Judgment: It is clear that unless something has happened to keep alive the rights of the Plaintiffs they cannot after this lapse of time get execution against the immoveable property of the Defendants. Cirilli & Sons v. Demetri (1905) 6 C.L.R., 81.
Mr. Paschales for the Plaintiffs says that certain things have been done which distinguish this case from the former one.
He says that in 1900 and 1901 applications were made for the sale of immoveable property of the Defendants at Ora and that the heirs of Yanni Christodoulou appeared before the Court at the hearing of each of those applications. He says that these were claims made before a Judge within the 15 years prescribed by Art. 1660 and that this case comes within the provision of Art. 1666 of the Mejelle enacts that if a person makes a claim from an the once every few years in the presence of a Judge and if 15 years pass in this way and his claim is not decided this does not prevent the hearing of his claim.
The claims made in 1900 and 1901 were heard and decided. If those applications were by any chance still alive it might assist the Plaintiffs. But that those applications were heard and finished. The present is an entirely new application-a new "dawa "-and it is more than 15 years after the judgment and cannot be heard.
The appeal must therefore be dismissed with costs.
Appeal dismissed.