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clr/1966/1966_1_259.pdf

IJosi'i'iriDL·,, SiAvuiNiDiis J.J. & HADJIANAMASMOU At.. J.] AVGHI LAMBROKLIS SAKI;U.ARIDF:S. 1966 Oct. 14 AVOHI l/'/'i'/A/'j/. LAMBROKLIS SAKELLARII)I S r. V. LEONDIOS LKONDIOS I'APA SAVVA A N D A N O I I U R , / I'APA S,\V\A Pesptuia'ents. AND ANOTMFR (Chi/ Appeal No. 4588). Ci\;l Pun edi.ie Pxecutioih- Sole of immovables--Appral •·•• const the dismissal ·>/ an appfi\aiion by the ptd'^ment d.htoi basul on .setlions 43,-44 and AU of the Ci\il Pro·. ed,ii<· 'aw, Cap. hand the Pules of Sale (rule 1( (a)and(b))mad,· •here­ under. to set aside the sale for alleged irrcuiduniic. Open to the trial Court, on the ev'nieme before them, 'ο ΊΊ,·\. the fhtdm»\ the\ did--And to come to the tonehision 'h-u .here were i-eithei "missions nor iiregularities at the sale -And that the highest bid was not inadequate—Ci\ii Procedure '.aw. Cop, 6 section 38. L·xecution-••liy sale of immovables- -See above. immovable Property--Safe Sale of Immovable Alleged of in execution—See Property- In exemtion oiiussions above: of a judgnu-n or irregularities--Sec '•'it- above. Practice -Appeal-- Findings of fact made by trial Courts Iii-ding by the Court preferring the evidence adduced by on·· pa>i\ to that of the other- A matter of credibility of witnesses • Open to the trial Court to make thefindings of fact comp/ai-icd of and to prefer certain witnesses' evidence to that of others— Onus on the appellant to convince the Court of Appeal that the decision appealed from is wrong—Such onus not di^clnuged in the present case. Findings of fact by trial Court—Principles upon which the Appel­ late Court will interfere with such findings—Onus appellant—See Witnesses—Credibility cast on the above. of—See above. Practice—Appeal—Adjournment--Application for adjournment to brief counsel—Refused the hearing of the appeal was given. 259 to Court of Appeal asample notice of '9<>6 c ' Avcm Practice—Adjournment-- Application for adjournment to bring witnesses not summoned by applicant—Delaying tactics—Application refused. I.AMIMOKI.IS SAKI'Iι AniDhs n. Adjournment Adjournment of hearing of application or of the hearing of an appeal - Application for- See above. 1 MiMjinS | ' Μ · Λ S A WA Appeal. AND ANOIIII Κ Appeal against the judgment of the District Court of Litnassol (Mulachlos & Papadopoullos D.J.J.) dated the 30th June, 1966 (Action No. 1347/61) dismissing an application to set aside the sale of appellant's property which took place on the 3rd April, 1966. Appellant in person. A. Mynanthis, for the respondents. The following ruling was delivered by:Joswnioiis, J. : At this late stage of the proceedings the appellant is applying for an adjournment to instruct coun­ sel to appear on her behalf in this appeal. It is on record that notice of the dale of hearing of this appeal was given to the appellant on the 21st September last, that is to say, 23 days ago. We think that in the circumstances there was ample time lo instruct counsel to represent her today before the Court. The present appeal before us today is not the first appeal connected with the execution of the judgment issued against appellant and her husband in September 1963. This Court has in the past repeatedly referred to the delaying tactics of the appellant in this case. In giving his judgment on the 4th February, 1966, the President of the Court said : " Unfortunately, the appellant in this case has repeatedly taken steps in this action for the purpose of delaying execution and satisfaction of the judgment ". Likewise, in the judgment of the 5th April, 1966, this Court referred again to the delaying tactics of the appellant. With regard to the appellant's application to set aside the sale of her property, the learned President of this Court, in giving his judgment on that day, said " She must, however, seek legal advice in the mailer before taking any action ". Un­ fortunately, it seems that the appellant has not thought fit lo seek legal advice in connection with her present appeal, and it these circumstances we arc not prepared to grant the adjournment sought by her. 260 1966 Oct. 14 Having heard her address this Court for over an hour, we shall now proceed to give judgment in this appeal. Application for refused. adjournment AVGHl LAMBRUKIIS SAKfcUAKlDIS IK The judgment of the Court was delivered by:- LEONHJOS Josi I'Mioi s, J. : This is an appeal by the judgment deb­ tor from the order o f the Kull District Court o f Limassol dismissing her application to set aside the sale o f her property which took place on the 3rd A p r i l , 1966. The sale was made by v i i l u e o f a writ of sale issued against the appellant on the 15th November, 1965, in icspecl of her immovable properly consisting o f a building-site at Ay. loannis quarter, l.unassol, under Registration No. 38964. The grounds on which the judgment debtor sought to ha\e the sale set aside were : (

  1. a)thiit there was an omission or irregularity at the sale, and, (
  2. b)thai the highest bid was inadequate. The application wa-, based on .sections 43, 44 and 46 o f the Civil Piocedure Law, Cap. 6, and the Rules o f Sale made under the same law Ί he debtor's version appeals in paragraph 5 o\' her a f f i ­ davit, sworn on the - 7th A p r i l , 1966. The substance o f that paragraph is that the sale commenced on the 3rd A p r i l , 1966, with a bid for £3,000, then the M u k h t a r conducting the au­ ction received a bid for £9,500 f r o m the first respondent then a bid for £10,000 from a stranger, but he illegally refused t o accept a higher bid for £10,500 from the appellant's son Gcorghios Sakellarides. The appellant further complains that other persons who were willing, ready and able to bid and buy ihc property weie stopped cither by the M u k h t a r conducting the sale or the respondents. The trial Court, after hearing four witnesses called by the appellant and four witnesses called by the respondents, made its f i n d i n g preferring the version o f the respondents, as appear­ ing mainly in the evidence o f the M u k h t a r auctioneer, Thisseas Pilavakis, and that o f the first respondent. The appel­ lant today has complained thai Ihc trial Court d i d not believe the evidence adduced by her and that it preferred the evidence adduced by the respondents. This was a matter o f credibility o f the witnesses and it was upon the trial Court lo make their 261 PAPA . SA\\A AND ANOIHHR 1966 υ ο ί ^ Avum LAMBROKLIS findings o f fuel and lo come to the conclusion that certain witnesses' evidence was preferable to that o f others. The onus is on the appellant to convince this Court that the decision below is wrong. S A Κ1:1.1 AKIW-S ''• IIONDHIS The evidence o f the M u k h t a r , was supported by two bidding lists, bearing the signatures o\~the bidders, which were AND ΛΝΟΠΗΚ l > u l m c v idencc from the custody of the Land Registry Office. The first auction list shows that ihe auction opened at 10 a.m. on the 3rd April, 1966, with the respondents as the first bid­ ders for the sum of £3,000. There followed fifteen minutes later another bid by one Rena and Nicos Theodorides for £4,500 ; at 10.20 a.m. the first respondent bid £5,000 ; at 10.25 a.m. Rena and Nicos Theodorides bid £6,000 ; at 10. 27 a.m. the first respondent, bid £7,000 ; at 10.50 a.m. there came the first bid by the appellant's son G. Sakellarides for £7,500 , at 10.55 a.m. Ihe first respondent bid £8,500 ; at 11.05 a.m. the appellant's son bid £9,000 ; a l 11.10 a.m. the first respondent bid £9,500; at 11.15 a.m. Andreas Exadaklylos bid £10,000, and finally at 11.20 a.m. the appellant's son bid the sum of £10,500. There was no other bid for some 40 minutes and al 12 noon Ihe auctioneer knocked down the property to the appellant's son for the sum of £10,500 as the highest bidder. There and then the auctioneer, in conformity with the provisions, of rule I I (
  3. a)of llie Rules o f Sale, called upon the highest bidder, the appellant's son, to deposit one-fifth o f the amount bid, plus transfer fees c l c , which altogether amounted lo something like £2,530. But appellant's son produced only a cheque for £100 only. There and then the auctioneer cancelled the sale and, acting in accordance with the provisions o f rule 11 (
  4. b)o f the Rules o f Sale, re-opened the bidding. That rule reads as follows : " ( b ) that if the highest bidder shall fail to comply with the provisions o f condition (a), the bidding shall thereupon be re-opened, and any loss which may result by reason o f any subsequent highest bid fal­ ling short o f the value o f such original highest bid shall be made good by the original highest bidder, together with all expenses incurred in compelling him to make good the s a m e " . Section 38 of the Civil Procedure Law, Cap. 6, is substan­ tially to the same effect. 262 The bidding was re-opened al 12.15 p.m. on the same day with both respondents bidding £3,000 ; D. Pissourios then bid £4,500 to be followed by the first respondent with a bid for £5,000 ; five minutes later at 12.35 p.m. Pissourios bid £5,100 and at 12.37 p.m. the first respondent bid the sum of £5,500. The auctioneer, afier waiting for about an hour and a half, knocked down, the property to the respondents at 2 p.m. for the sum o f £5,500. This version o f the auctioneer was accepted by the trial Court which, as already stated, found the facts accordingly. We have gone into the facts concerning the bidding with some detail in order lo show that the auctioneer complied strictly, with the law and the rules of sale. The version put forward by the appellant before the trial Court was rejected by them and, we think, rightly so. On the evidence before them, it was open to the trial Court to make the findings which they made. On ihese findings o f facts, we are οΐ the view thai ihe trial Court were justified in coming to the con­ clusion that there was neither omission nor irregularity at Ihe sale. As regards the second ground on which the application was founded, thai is to say, Hint the sale should be set aside on the ground that the highest bid was inadequate, we have not really heard any argument by the appellant, but we are of the view that there was ample evidence on the record to justify the Court in reaching the conclusion that the highest bid was not inadequate. Before dealing with the last ground o f appeal, that is to say, Ihe refusal.of the trial Court to allow her an adjournment on the 29lh June, 1966, to enable her to call more witnesses, I think it would be relevant lo refer briefly to ihc history o f this ease. The respondents, judgment creditors, instituted their action in the year 1961, claiming by virtue o f a contract o f dowry. After protracted hearings, the District Court o f Limassol issued their judgment on the 21st September, 1963, awarding them the sum o f £11,140 plus costs. Since then the judgment creditors have been trying unsuccessfully l o satisfy that judgment, due mainly to the deliberate delays and protracted litigation by ihe judgment debtors, mainly the present appellant. There have been at least four appeals before this Court in connection with the execution o f the 1966 Oct- 14 Ave.ΗI LAMBROKLIS SAKELLARIDtS n. LKONDIOS PAPA SAVVA AND ANOTHKR l'J66 Aw.m judgment, and this (."ourl cannot but take judicial cognizance of this mailer. In fact, reference has been made in at least two previous judgments of this Court to the delaying tactics IMIIR..MIS o f ||,L. Ll 'Ill 11 \s ;i |-,pellnitl. \ l t l l » ·. '' ''.''""' ^n' Reverting now to the question whether the in.il (. ourl was justified in refusing to grant ihe adjournment, we have looked al the tecoid (page 28) which shows how the mailer was laiscd I iiM o\' all it appears that on the previous
  5. da)Ihe ap­ pellant had misled the Court by informing them that her advocate had left Cyprus, which in fact was not mie. The advocate appeared in pcison and slated that the appellant had w'tlidiawn her instructions from him, informing him that the mallei had been setlled After dealing with this ma'.tci, the Court informed the parlies that it proposed pro­ ceeding wilh the hearing oi' the application. Thereupon the appellant said " I have no other witnesses availal le today. M\ witnesses aie two ladies and an electrician who cannot come today lo ( o u r l . They may come to-motrow in the afternoon I theiefoie appl) lor an adjourn men Γ' Respondents' counsel opposed this request s.t\ nig that ΐίι.-Μ* weie delating ladies on Ihe part o\' the appellant. Ihe ' • unl then asked the appellant whether she had .summoned h. wnnesses and she replied thai she only summoned the ; liegisliv Clcik, who had already given evidence. I lei a(i«>n I'M, ail)oui mneni was accordingly refused denng ihe long history of this case and the facts stahe iceoid we are of the view that the trial Cotnl was M.stilied in refusing ι he adjournment. ι -.' 'hese reasons ihe appeal is dismissed wilh cosis Appeal dismissed with costs. 264

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