PHILOTHEOS ARCHIMANDRITES ν. BASILI PETRI (V7) 1 CLR 21

PHILOTHEOS ARCHIMANDRITES ν. BASILI PETRI (V7) 1 CLR 21 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 (V7) 1 CLR 21 1905 December 9 [HUTCHINSON, C.J. AND TYSER, J.] PHILOTHEOS ARCHIMANDRITES Plaintiff, v. BASILI PETRI Defendant. EX-PARTE XENOPHON CHRISTODOULOU. JUDGMENT CREDITOR-MEMORANDUM OF JUDGMENT-SALE BY MORTGAGEE-PROCEEDS OF SALE BY SHERIFF-PRIORITIES-LAW VIII OF 1894, SEC. 9-LAW IX OF 1896, SEC.

1. A judgment creditor who has placed a memorandum of judgment on the property of his judgment debtor which was subject to a mortgage, has no special rights over the proceeds of the sale of the property when sold by the mortgagee. APPEAL by Xenophon Christodoulou from the order of the District Court of Nicosia of 14th October, 1905, dismissing his application to set aside an order made by that Court on the 10th January, 1905, for payment of £3 1s. 8cp. to the Plaintiff Philotheos. The Plaintiff Philotheos and the applicant Xenophon were both judgment creditors of Basili. On 23rd November, 1903, Xenophon placed a memorandum of his judgment on certain immovable property of Basili; On 19th December, 1904, that property was sold in execution under a writ obtained by another judgment creditor of Basili, who had a mortgage on the property prior to the judgments of Xenophon and Philotheos; and after payment of what was due on that writ there was a balance from the proceeds of sale of £ 3 Is. 8cp. in the hands of the Sheriff; On 28th December, 1904, Phiotheos applied to the Court for an order to attach the £3 Is. 8cp. towards payment of his judgment debt; On 29th December, 1904, attachment issued on Philotheos' application; On 10th January, 1905, an order for payment by the Sheriff of the £3 1s. 8cp. to Philotheos was made. Xenophon then applied to the District Court in this action to set aside the order of 10th January, 1905, which had been made without notice to him; and the order of the District Court, dismissing this application, was the order appealed against. A. Kyriakides for the Appellant. D. Stavrinides for the Respondent. Judgment: CHIEF JUSTICE: The Appellant Xenophon first relied on Law VIII of 1894, Sec. 9, which enacts that while the registration of a judgment remains in force "the interest of the debtor "in the property shall be charged with the payment of the debt "due under the judgment in priority to all debts or obligations of the debtor not specifically charged upon the property prior to "the deposit of the memorandum." He contended that this enactment gives him a charge on the £3 1s. 8cp. That contention however cannot be maintained in the face of the judgment of this Court in the case of Sophocli H. Haralambo v. Haji Michael Loizi Cazamia reported in C.L.R. ii,
2. The Court in that case decided that a judgment creditor who has charged the property of his debtor, which is subject to a mortgage, with the payment of his judgment debt in accordance with Sec. 13 of Law X of 1885; obtains thereby no special right over the proceeds of sale of the property when it is sold by the mortgagee. Section 13 of Law X of 1885 enacts that the property mentioned in the memorandum should be "answerable for the payment of the judgment debt to the extent of the beneficial interest of the judgment debtor in the property." The terms of these two enactments in the Laws of 1885 and 1894 as to the effect of registration of a judgment are so similar that they must be construed in the same way. We are bound by the decision of the Court referred to, and must hold that Xenophon has no charge on the £3 1s. 8cp. by virtue of Sec. 9 of the Law of
3. The Appellant also relied on Sec. 10 of Law IX of
4. He admitted that that enactment does not in terms cover this case, but argued that the principle of it is in his favour. That Section enacts that where two more judgment creditors, by registering their judgments in the manner provided by Law, have charged the same property with the payment of their debts, and one of them has proceeded to sell the property in satisfaction of his debt, the balance after satisfying his debt and costs shall be applied in satisfaction of the other registered judgments in the order of their priority of registration. But this property was not sold a judgment creditor who had registered his judgment. The legislature has not provided (possibly by an oversight) for a case like the present one, where the property is sold by a prior mortgagee. I think therefore that the applicant had no charge on the £3 1s. 8cp. and that the appeal should be dismissed with costs. Tyser, J.: I agree. Appeal dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο