clr/1979/1979_1_269.pdf

(4)of the Civil Procedure Rules; the other two members of the Court dealt with the appeal on its merits as the question whether an appeal lies was neither raised by counsel nor properly argued. 269 K.E.M. Ltd., τ. PavUdes & Axaouzos

(1979)submitted to judgment for the sum of £ 43,785 payable by spe­ cified monthly instalments. It was a condition of the consent judgment that failure to pay any one instalment for a period of forty days after it became payable would render the whole ba­ lance then due payable forthwith with interest at 7%. 5 On February 28, 1973, presumably as a result of the issue by the respondents of a writ of movables, the appellants filed an application for stay of execution which was settled on April 14,

1. Under the terms of the settlement it was agreed: that the appellants would deliver to the respondents forthwith all the 10 vehicles described in the writ of summons in execution of the judgment debt and costs, the respondents would allow the ap­ pellants to have possession of the vehicles on condition that as from the 19th April, 1973,theywould start delivering same tothe respondents at the rate of eight vehicles permonth,two of which 15 should be lorries and indefault the appellants would be liable to deliver all vehicles forthwith; that the vehicles so delivered or so many of them as was necessary would be sold by public auction unless the parties otherwise agreed, in satisfaction of the judg­ ment debt and costs; and that the exact amount of thejudgment' 20 debt would be ascertained by the accountants of the parties and failing that by the advocates of the parties. The Courtmadean order as per the terms of the settlement. On June 27, 1973, therespondents applied for a writ of delive­ ry. The application was made ex parte under Order 43B* of 25 the Civil Procedure Rules. In the affidavit in support of the application,which was sworn by anemployee of therespondents, there were set out therelative terms of theconsent ordermadeby the Court pursuant to theabove settlement and it further stated: that contrary to the order for the delivery of eight vehicles per 30 month including two lorries the appellants had, up to the 27th June, 1973,delivered onlyfivevehicles; that up to the 19thJune, 1973,theappellants' debt was £44,823.185 mils plus interest and that a statement of account was delivered by counsel for theres­ pondents to counsel for the appellants and the latter made no 35 comment on the said account; that under the terms of thecon­ sent order the appellants were liable to deliver all vehicles and that same were in their possession. * Rule 1 of Order 43B is quoted at pp. 274-5 post. 270 1 C.L.R. K.E.M. Ltd., v. Pavlides &Araouzos The application was granted on the same day and an order for the issue of a writ of delivery was made; and hence the present appeal. Counsel for the appellant contended^: 5 10 15 20 25 30 35 (a) That the order made by the Court on the 14th April, 1973 was not an order within the scope of Order 43B; and that if it was such an order the terms thereof had not been complied with. (b) That the trial Judge should not have granted the writ on an ex parte application and that if Order 43B doe:> empower the Court to make an order on an ex parte application in a case of thisnature it is unconstitutional, being contrary to the provisions of Article
2. 2 of the Constitution. Held,(L. Loizou J., Malachtos J. concurring)

(1)that the order made by the Court with the consent of the parties on the 14th April, 1973, is an order on the basis of which an order for the issue of a writ of delivery could be made; that the appellants were bound by the order in question; that it constituted an estoppel; and that it could only be set aside by a fresh action brought for this purpose (see Georghiades v. Theodoulou, 1962 C.L.R. 115).

(2)That though there was no strict compliance with the terms of paragraph 5of the settlement, which was to the effect that the exact amount of thejudgment debt owed by the appellants to the respondents should be ascertained by the accountants of the parties or in the event of their failure to agree by the advocates of both parties, counsel for the respondents delivered detailed accounts of the judgment debt then standing due to the credit of the respondents, which balance up to the 19th June, 1973 was £44,823.185 mils plus interest, and appellants made no comment with regard to the accounts so submitted; that this was substantial compliance with the requirement of paragraph 5 of the judgment and in any case, having regard to the terms of the judgment and order, this was a sum readily ascertainable; and that, accordingly, contention (b) must fail.

(3)That there is no merit in contention (c) above, in that all through these protracted proceedings the appellants were present and represented and consented to the judgment given a271 K.E.M. Ltd., ?. Pavlides &Araouzos

(1979)gainst them; that the fact that the order for a writ of delivery, which is a mode of execution, was given in accordance with the provision of Order 43B, on an ex parte application does not constitute an infringement of theprovisions of Article 30.2;that apart from everything elseit was open to the appellants to take 5 steps under Order 48, rule 8

(4)to have the order set aside or varied whichthey failed to do; and that, accordingly, the appeal must fail. Appeal dismissed. Cases referred to: Georghiades v. Theodoulou, 1962 C.L.R. 115. 10 Appeal. Appeal by defendants against the order of the District Court of Nicosia (Demetriades, P.D.C.) dated the-27th June, 1973, (Action No. 7530/71) whereby a writ of delivery of certain ve- 15 hides of the defendants was issued to the plaintiffs. M. Christofides, for the appellants. T. Papadopoullos, for the respondents. The following judgments were given: STAVRINIDES J.: The appellants appeal from an order of the 20 District Court of Nicosia for the issue of a writ of delivery of certain vehicles to the respondents. The writ was issued on an ex parte application of the respondents. By Order 48, rule 8

(4), of the Civil Procedure Rules " Anyperson (other than the applicant) affected byan order 25 made ex parte may apply by summons to have it set aside or varied and the Court or Judge may set aside or vary such order on such terms as may seem just." In my view the effect of this provision isto preclude an appeal to this Court until an application by theparty affected to the Court 30 that made the order has been made and determined. From this it follows that the appeal must be dismissed. Accordingly, I refrain from dealing with any of the points raised by Mr. Christophides in support of the appeal, which I would dismiss with costs. L. Loizou J.: I agree that the appeal should be dismissed. But as the question of whether an appeal lies was neither raised 272 35 1 C.L.R. K.E.M.Ltd.,v.Pavlides & Araouzos L. Loizou J. by counsel nor properly argued I consider it pertinent to deal briefly with the merits of the appeal. This, as has aready been said, isan appeal against the order of the District Court of Nicosia for the issue of a writ of delivery. 5 The facts, in so far as they are relevant for the purposes of this appeal, are shortly as follows: By action No. 7530/71 of the District Court of Nicosia the respondents-plaintiffs in the action—claimed a declaration of the Court for the revocation of a hire-purchase agreement bet10 ween the parties in respect of a number of motor-vehicles, a sum of £48,175-plus interest at 9 % to final payment, an order for the delivery of the vehicles the subject of the hire-purchase agreement, and damages and costs. On the 26thFebruary, 1972,the defendants—appellants in this 15 Court—submitted to judgment for the sum of £ 43,785.-payable by specified monthly instalments. It wasa condition of the consent judgment that failure to pay anyone instalment for a period of forty days after it became payable would render the whole balance then due payable forthwith with interest at 7 %. 20 On the 28th February, 1973, presumably as a result of the issue by the respondents of a writ of movables, the appellants filedan application for stay of execution. After several appearances in Court this application was settled on the 14th April, 1973. Under the terms of the settlement it was agreed: that 25 the appellants would deliver to the respondents forthwith all the vehicles described in the writ of summons in execution of the judgment debt and costs, the respondents would allow the appellants to have possession of the vehicles on condition that as from the 19th April, 1973, they would start delivering same to 30 the respondents at the rate of eight vehicles per month, two of which should be lorries and in default the appellants would be liable to deliver all vehicles forthwith; that the vehicles so delivered or so many of them as was necessary would be sold by public auction unless the parties otherwise agreed, in satisfaction 35 of thejudgment debt and costs;and that the exact amount of the judgment debt would be ascertained by the accountants of the parties and failing that by the advocates of the parties. The Court made an order as per the terms of the settlement. On the 27th June, 1973,the respondents applied for a writ of 273 L. Lolzoo J. K.E.M.Ltd., v. PavIideS & Araouzos

(1979)delivery—the subject-matter of this appeal. The application was made ex parte under Order 43Β of the Civil Procedure Rules. Intheaffidavit in support of theapplication,which was sworn by an employee of the respondents, are set out the rela­ tive terms of the consent order made by the Court pursuant to 5 the settlement of the application for an order for stay of execu­ tion and it was further stated: that contrary to the order for the delivery of eight vehicles per month including two lorries the appellants had, up to the 27th June, 1973, delivered onlyfive vehicles; that up to the 19th June, 1973, appellants' debt was 10 £44,823.185 mils plus interest and that a statement of account was delivered by counsel for the respondents to counsel for the appellants and thelatter madenocommentonthe said account; that under the terms of the consent order the appellants were now liable to deliver all vehicles and that same were in their 15 possession. On the same day the application was granted and an orderfor theissue of awrit of delivery wasmade. Against that order the appellants now appeal. The appeal was argued mainly on three grounds, i.e. that theorder made by the Court on the 14th April, 1973, was not an order within the 20 scope of Order 43Β of the Rules of Court; secondly that if it was such an order thetermsthereof hadnotbeencomplied with; and lastly that the trial Judge should not have granted the writ on an exparteapplication and that if Order 43Βdoes empower the Court to make an order on an exparte application in a case 25 of this nature it is unconstitutional, being contrary to the pro­ visions of Article 30.2 of the Constitution. I propose to deal very briefly with the grounds in the same order. Rule 1 of Order 43 Β on which the application for a writ of 30 delivery was, interalia, based reads as follows: "

1. Where it is sought to enforce ajudgment or order for the recovery or delivery of any movable property by writ of delivery, the Court or a Judge may, upon the exparte application of the plaintiff, order that execution shall issue 35 for the delivery of theproperty, without giving the defend­ ant the option of retaining the property upon paying its assessed value, if any, and that if the property cannot be found, and unless the Court or a Judge shall otherwise 274 1 C.L.R. 5 K.E.M.Ltd.,v. Pavlldes &Araouzos L. Loizou J. order, the deputy sheriff shall distrain all the movable and immovable property of the defendant till the defendant deliver the property; or, at the option of the plaintiff, that the deputy sheriff cause to be levied, by seizure and sale of the defendant's movable property, the assessed value, if any, of the property which cannot be found. The applica­ tion for the writ of delivery shall be accompanied by a copy of the judgment or order sought to be enforced.'* I am clearly of the opinion that the order made by the Court 10 with the consent of the parties on the 14th April, 1973, is an order on the basis of which an order for the issue of a writ of delivery could be made. The appellants were bound by the order in question; it constituted an estoppel; and it could only be set aside by a fresh action brought for this purpose (seeGe~ 15 orghiadesv. Theodoulou, 1962 C.L.R. p. 115). 20 25 30 With regard to the second ground it was argued that para­ graph 5 of the order to the effect that the exact amount of the judgment debt owed by the appellants to the respondents should be ascertained by the accountants of the parties or in the event of their failure to agree by the advocates of both parties has not been complied with. It may well be that there was not strict compliance with the terms of this paragraph but it should be pointed out that, as clearly stated in the affidavit in support of the application, counsel for the respondents delivered detailed accounts of thejudgment debt then standing due to the credit of the respondents, which balance up to the 19th June, 1973 was £44,823.185 mils plus interest, and appellants made nocomment with regard to the accounts so submitted. In my view this was substantial compliance with the requirement of paragraph 5 of thejudgment and in any case it seems to me that, having re­ gard to the terms of the judgment and order, this was a sum readily ascertainable. The last ground is that if the order could be given ex parte 3^ then rule 1 of Order 43 Β is unconstitutional as offending the provisions of Article
2. 2 of theConstitution in that the appel­ lants did not have the opportunity to be present and state their case. In my view there is no merit in this ground either, in that all through these protracted proceedings the appellants were. present and represented and, as stated earlier on, consented to 40 the judgment given against them. I do not think that the fact 275 L. Lolzou J. K.E.M. Ltd., v. Pavlides & Araouzos

(1979)that the order for a writ of delivery, which isa mode ofexecution, wasgiven inaccordance with theprovision of Order 43B, on an ex parte application constitutes an infringement of the provisions of Article 30. 2. Apart from everything else it was open totheappellants totake steps under Order 48, rule 8

(4)to 5 have the order set aside or varied which they failed todo. For all the above reasons I agree that this appeal should be dismissed with costs. MALACHTOS J.: I also agree that the appeal should bedis- missed. 10 As, however, thepoint on which this appeal wasdetermined bythepresidingJudgeofthisCourt,wasnotraised onbshalfof the partiesor properly argued bycounsel before usandinview of thefact that both counsel expressed theview that an appeal lies,indeterminingthisappeal Iaminclined toproceed on this 15 assumption and say, straight away, that I find no merit inthe submissions putforward before usbycounsel for theappellants for thereasons given inthejudgment just delivered bymybrother Judge Loizou. STAVRINIDES J.: The appeal is dismissed with costs. 20 Appealdismissed with costs. 276