SYMEON N. CHIELIDES ν. YACOUMI NICOLA AND ANOTHER. (V15) 1 CLR 118 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V15) 1 CLR 118 1937 December 17 [STRONGE, C.J., AND FUAD, J.] SYMEON N. CHIELIDES v. YACOUMI NICOLA AND ANOTHER. (Appeal No. 3605.) Agreement for sale of land-Action for balance of purchase price or, alternatively, delivery of possession, resulting in judgment for payment of such balance-Fresh action for payment of the judgment debt or, in default, delivery of possession-Abuse of process-" Res judicata " Plaintiff brought an action against defendants on an agreement for the sale of land, claiming the balance of the purchase price or, alternatively, an order directing the defendants to deliver to him possession of the land in accordance with the agreement. Defendants, submitted to judgment for the balance of the purchase price, and plaintiff accepted judgment for such balance, withdrawing his alternative claim for delivery of possession without prejudice to his rights. Shortly after obtaining this judgment plaintiff brought a fresh action against the same defendants, claiming that they should pay him the judgment debt and accept registration in their names, or, in default, deliver the land back to him, and judgment was given in his favour accordingly. From this second judgment the defendants appealed (District Court, Nicosia, No. 1659/36). Held, that there being only one cause of action, namely, breach of contract for non-payment of the balance of the purchase price, that cause merged in the judgment obtained in the first action and therefore a second action could not be brought upon the same cause. Held further, that an action upon a judgment is, in the absence of justifying reasons, an abuse of the process of the Court. G. Theocharides (with him C. Severis) for the appellants (defendants): The claims in the first action were in the alternative, and plaintiff accepted judgment on one, namely, payment of the balance still due under the agreement. Without taking any steps to realize the judgment by execution, he brings a fresh action claiming that the defendants should pay off the amount of the judgment and accept registration and that in default they should be ordered to evacuate and deliver possession of the property to the plaintiff. An action on a judgment is an abuse of process when there are no special reasons to justify it. Furthermore, the subject matter of the second action was res judicata, for there had been a claim for possession in the first action. Two remedies may have been available, but the cause of action was only one, and that cause of action having been merged in the first judgment, no section action, could be brought. J. Clerides (with him C. Glykis) for the respondent (plaintiff): The first action was not an action for breach of contract, but for payment of the balance. Although there had been a breach plaintiff did not exercise his right to rescind but withdrew his claim based on that right, and was therefore not debarred from pursuing that right later. He gave the defendants a chance to pay the balance in order that they might receive registration in their names. This case is analogous to that of Griffiths v. Vezey
(1906)1 Ch. 796. G. Theocharides was not called upon to reply. STRONGE, C.J.: In this case the parties entered into an agreement in writing on the 19th January, 1926, whereby the plaintiff sold to the defendants a house and field for £65, of which £4 was paid in advance, the balance being payable by interest-bearing instalments. The agreement gave plaintiff the right, in the event of defendants' failure to pay any instalment, to cancel it and retain whatever moneys he had received, and put him under the obligation, upon the purchase price and interest being paid off, to transfer the ,title. On the 18th September, 1936, plaintiff sued defendants claiming
(1)a balance of £54.15.6, upon payment of which he stated in the writ he was ready to transfer the title, or
(2)alternatively, an order directing them to give him back the house and field in accordance with the terms of the agreement. On the 26th October, 1936, when the parties appeared before the Court, the defendants submitted to judgment on the first part of the claim. Plaintiff agreed to having judgment on that part and withdrew the second part of the claim, stating that -he did so without prejudice to his rights. To this reservation the defendants objected. The judgment of the Court directed the defendants to pay the plaintiff the sum of £
- 15.6 and stated that the second part of the claim had been withdrawn without prejudice to plaintiff's rights, if any. No steps were taken to recover that sum by means of execution. Plaintiff then instituted a second action on the 6th November, l936, claiming that the defendants should pay off the sum payable under the judgment obtained in the first action and accept registration, and that in default of payment they should be ordered to deliver up possession. In this second action plaintiff succeeded in obtaining a judgment pursuant to his claim, and from this latter judgment the defendants have appealed to this Court. In a recent appeal (No. 3603) this Court decided that an action could be brought upon a judgment when there were circumstances to justify the taking of such a course. In that case the second action was brought shortly before the expiration of the prescriptive period of fifteen years after the judgment obtained in the first action, and the avowed object was to keep the judgment alive as, in spite of efforts made to levy execution, it was not satisfied. In this present case, however, there has been no attempt at execution of the judgment obtained in the first action by any one of the modes available under section 12 of the Civil Procedure Law of 1895; there are no circumstances justifying the brining of a fresh action upon that judgment; and in so far as the second action is one brought upon that judgment, it is an abuse of the process of the court, which cannot be tolerated. In fact, however, the second action in this case, is not merely an action upon the judgment in the previous action. In the previous action the claim was framed disjunctively in two parts-one for payment of the balance of the purchase price, and another for delivery of possession of the land sold under the agreement. The attempt at preserving plaintiff's rights to the second remedy-that of repossession of the land-was really nugatory; for, as the claim was framed, there could only be judgment on one branch, and judgment was agreed to upon the first part of the claim. In the second action the claim is, in substance, the same as that in the first action, with this difference, however, that repossession of the land is not asked for as an alternative, but as a remedy in default of payment. There was one and only one cause of action under the agreement-breach of contract for non-payment of the purchase price. When plaintiff obtained judgment in the first action, his cause of action was merged in that judgment and he could not sue the defendants again upon the same cause of action: see Halsbury's Laws of England (Hailsham edition), Volume 13, p. 415, and Serrao v. Noel, 15 Q.B.D., p.
- He may have had two remedies, but he pursued them in the alternative, and once he agreed to judgment for one of them, it was no longer open to him to bring an action for the other by reason of the first proving ineffectual. Mention was made of the case of Griffiths v. Vezey (1906, Ch., p. 796), but that case was quite different from the case in hand. That was an action for specific performance, which decided that where the purchaser failed to comply with a judgment directing specific performance against him, the vendor was entitled, if the contract contained a clause forfeiting the deposit and giving the vendor power to proceed to a fresh sale, to an order declaring the deposit forfeited and for payment of any deficiency on a fresh sale instead of the usual order rescinding the contract, which would have the effect of preventing the vendor from retaining the deposit. The case in hand is not an action for specific performance under the law of Cyprus. Moreover, the orders made in Griffiths v. Vezey were orders made in the same action, supplemental to the judgment given therein and in accordance with the various ancillary forms of relief which are available in England in actions for specific performance. The second action in the case in hand was either an attempt to rectify the mistake made in respect of the form in which the claim was framed in the first action, or an effort to obtain satisfaction of a judgment which could not be satisfied by making use of any of the modes of execution available under the Civil Procedure Law,
- In so far as it was such an effort, it is precluded by section 13 of that Law; and to the extent that it was an attempt to rectify a mistake, it is equally precluded by the existence of the judgment in the previous action. This appeal must therefore succeed and the judgment in the second action be set aside with costs. FUAD, J.: I concur. Appeal allowed: Judgment set aside. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο