|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(V6) 1 CLR 64
1903 November 16
[HUTCHINSON, C.J. AND TYSER, J.]
NEOCLE SARIPOGLOU,
Plaintiff,
v.
J. B. GOODING,
Ex PARTE MARIA NASRI.
Defendant.
JURISDICTION-DISTRICT COURT.
A District Court has no jurisdiction to make an order cancelling the registration under Law -VIII of 1894 of the judgment of another District Court.
This is an appeal by the Plaintiff from an order made by the District Court of Famagusta on the 26th November last directing that certain memoranda lodged by the Plaintiff on the property of Maria Nasri in Famagusta District be removed.
The facts so far as material to this judgment are as follows:
The Plaintiff, being a judgment creditor of the Defendant under a judgment dated 23rd of March, 1903, of the District Court of Nicosia in an action in that Court, had obtained a writ of attachment of a debt due by Maria Nasri to the judgment debtor; and, on the appearance of the parties in pursuance of that writ, the District Court of Nicosia on the 22nd June, 1903, ordered "that Maria Nasri, debtor to the Defendant in the sum of £25, do pay to the Plaintiff in this action the said sum £25 in satisfaction of the judgment issued in this action and dated 23rd March, 1903."
The Plaintiff then lodge the memoranda above mentioned, treating this order as a judgment and himself as a judgment creditor of Maria under it, for the purpose of rendering her immoveable property in Famagusta District a security for the £25 due to him from her under the order.
Maria thereupon applied to the District Court of Famagusta to have the property "set free;" and on the 26th November that Court on her application made the order which is now under appeal. The order purports to be made in the action in the District Court of Nicosia.
Pascal for the Plaintiff (Appellant).
Essayan for the Applicant (Respondent).
The Defendant did not appear.
Judgment: The first question is whether the District Court of Famagusta had jurisdiction to make the order.
The memoranda were lodged under Law VIII of 1894, which enacts that a judgment creditor may render the immoveable property of the judgment debtor a security for the payment of his judgment debt by registering his judgment at the Land Registry Office; and that registration shall be effected by depositing at the office of the Land Registry of the District within which the property sought to be charged is situate an office copy of the judgment and a memorandum describing the property and claiming that the debtor's interest in it may remain answerable for the payment of the debt. Neither this Law nor any of the Laws which have amended it contains any express provision for a. case in which the person on whose property a memorandum has been wrongly placed seeks to have it removed. It does however provide for orders being made to prolong the registration, or to restrain other persons from dealing with the property, or to sell the property, (Sec. 7 and 9); and such orders are to be made by "the Court." As this Law takes the place of Sec. 13-16 of Law X of 1885, which previously dealt with the same subject and which are repealed by this Law, we infer that the words "the Court" have the same meaning as in Law X of 1885, that is (as defined in Sec. 1 of that Law), the Court before which the action (in which any application or order is made or any writ is issued) has been instituted.
It was the intention of both these Laws, and we think it is the natural and convenient course, that any orders which require to be made in consequence of the registration of a judgment should be made by the Court in which the action was instituted.
In our opinion therefore if any Court bad power to make the order now under appeal, as to which we need not give any opinion, it was the District Court of Nicosia and not that of Famagusta.
The appeal must therefore be allowed with costs in both Courts.
The other question which was argued on the appeal was, whether or not the order of the District Court of Nicosia of the 22nd June was a "judgment" and constituted the Plaintiff a "judgment creditor "of Maria, in the sense in which those terms are used in Law VIII of 1894, so as to enable the Plaintiff to register under that Law. As it is not necessary to decide this for the purpose of disposing of the appeal we had better give no opinion on it.