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(V12) 1 CLR 11
1924 October 9
[FISHER, C.J. AND GRIMSHAW, P.J.]
CHRISTODOULO D. HAJIPAVLO
v.
YEORGHIOS MARKOULLIS.
FARMER DEBTOR-SALE OF DEFENDANT'S IMMOVEABLE PROPERTY-EXEMPTION -ESTOPPEL-PREVIOUS ORDER OF EXEMPTION-"SUFFICIENT LAND."
In this case plaintiff obtained judgment against defendant for £500 and now seeks to execute his judgment against the defendant's immoveable property. In a previous case, where the judgment debt amounted to about £5, the Court had, by consent, exempted the property, an order for the sale of which, is now sought. Defendant claims the benefit of Law 10 of 1885, proviso to section 21, and states he is a farmer, but admits in evidence that he has one son being educated in a good school and a daughter being trained in Athens.
The District Court gave judgment as follows:-
In this case the judgment creditor seeks an order of the Court directing the sale of the immoveable properties of the judgment debtor, the parties not having arrived at any agreement as to the lands to be exempted.
In a former action an order of the Court was given by consent exempting a house and lands under Registration No. 12355 situated in Limassol.
Mr. N. Paschalis for the judgment debtor contends that such previous order creates an estoppel, and claims continuous exemption of the lands in question, he further claims that the lands under the said Registration are absolutely necessary for the support of the debtor's family.
Now firstly as to the question of estoppel.
Upon an examination of the proceedings and of the order given in the previous action we find that such order was given, by consent of the parties, in execution of a village judge judgment, to recover a sum of £2 12s. and interest thereon and 15s. costs, plus the costs of the application. The debtor's counsel, wisely, does not contend that an order given in an action between certain parties, amounts to res judicata in a subsequent action on the same subject matter but between a different plaintiff and the same defendant, he contends that such an order creates an estoppel against any subsequent applicant seeking to obtain an order for the sale of the property which had already been exempted by the previous order.
In our opinion it is not so, the order in question was obtained by consent in a case which had not been fought out, such an order may be an estoppel, inter parties, but not as against the present applicant who was not a party to that case.
This being so we have now to decide how much land is absolutely necessary for the support of the respondent and his family according to the provisions of Law 19 of 1919, section 3. We have heard evidence on both sides We find that the lands, sought to be exempted by the respondent, form the most valuable portion of his estate. The respondent himself assesses the value.of the lands in dispute at £350 and the remainder of the witnesses valued them up to £600 excluding the house.
One of the witnesses for the applicant offered £600 for the lands in question, this speaks for itself.
In construing the Law of 1919, we do not think that the intention of the Legislature was to protect the farmer to the prejudice of his creditors, but to secure for him sufficient land on which he and his family may live in accordance with their status in life.
In assessing the amount of lands, which should be left to the farmers, we must confine ourselves to what is absolutely necessary for the support of himself and his family and not to enter into any extravagant ambitions which may be fostered by the farmer.
The respondent's family consists of himself his wife and five children, the eldest being sixteen years of age.
There is evidence before us that the Zakaki properties would be sufficient for the support of the respondent and his family. We therefore make an order for the sale of respondent's immoveable property, except houses and all his lands situated at Zakaki, Registration Nos. 559 of 6th March, 1907, 656 and 657 of 11th December, 1911, 700 and 702 of 20th October 1913, and 705 of 23rd January, 1914, in execution of the judgment herein and costs of this application.
From this judgment Defendant appeals.
For Appellant Paschalis.
For Respondent Clerides.
Judgment: Affirming the judgment of the District Court.
Appeal dismissed with costs.