clr/1981/1981_3_603.pdf

(1981)The respondent Director did, by a decision communicated to applicant by letter dated September 28, 1978,review initially the reserve price but applicant sought a further review; and it was against the refusal of such further review that this recourse was filed. No recourse was filed against the initial review of 5 the reserve price. On the applicantionfor a provisional order: Held, that taking into account that the mortgage debt, in respect of whichitis sought to selltheproperty ofthe applicant, hasbecomealsoajudgment debt bymeansofaconsentjudgment 10 in the District Court of Nicosia and that by means of such consent judgment, which was given on September 14, 1978, the applicant undertook, in effect, to pay off the debt to the interested party by instalments, but she has failed to do so; that, furthermore, taking into account that the applicant knew 15 from December 18, 1980, that the sale was due to take place on January 25, 1981,but she did notfilethe present application for a provisional order until January 13, 1981, not exhibiting, thus, genuine urgency, a factor which forces this Court to look at the present application as yet another attempt to delay the 20 interested party in securing what is legitimately due to him; that as at the present stage of the proceedings, and without pronouncing finally in this connection, this Court has serious doubts whether the present recourse of the applicant is really likely to secceed eventually, because it appears that it was not 25 open to the applicant to seek a further review of the reserve Price (seesections 6,8'and9of the Immovable Property (Restriction of Sales) Law, Cap. 223 (as amended, interalia,by Law 60/66) ); that as one of the main considerations in granting or refusing a provisional order are the merits of the case in 30 which the provisional order is applied for, this Court has not been convinced that this isa casein which, as envisaged by rule 13of the Supreme Constitutional Court Rules, 1962,thejustice of the case requires the making of a provisional order asapplied for by the applicant; consequently, this application isdismissed 35 with an order that the applicant should bear the costs which have been incurred by the interested party in respect of it but there will be no order against the applicant regarding the costs of the respondent. Held,further, that, in the light of the history of the events 40 604 3 C.L.R. 5 loakjm v. Republic in this case, it appears, at this stage, that the administrative action complained of by the applicant isof a confirmatory nature and it could not, therefore, bechallenged by means of the present recourse under Article 146 of the Constitution. Application dismissed. Cases referred to: Cyprus industrial and Mining Co. Ltd.. (No. 1) v. The Republic

(1966)3 C.L.R. 467; 10 Galip v. The Minister of Interior and Another

(1974)3 C.L.R. 94; 15 M.D.M. Estate Developments Ltd. v. The Republic

(1980)3 C.L.R. 54; Cyprus Industrial and Mining Co. Ltd. (No. 2) v. The Republic

(1966)3 C.L.R. 474; Galazi v. The Minister of Education

(1967)3 C.L.R. 577 at p. 580; Miltiadous \. The Republic

(1972)3 C.L.R. 341 at p. 352; Petrolina Ltd. v. The Republic

(1977)3 C.L.R. 173 at p. 179; Markitsis v. The Attorney-General

(1980)3 C.L.R. 369,

1. 20 25 Application for a provisional order. Application for a provisional order postponing the sale of property of applicant at Kalopanayiotis village until the final determination of a recourse against the refusal of the respondent to review the reserve price in respect of the above sale. A. Eftychiou, for the applicant. M. Florentzos, Counsel of the Republic, with D._Prastitis, for the respondent. C. Hadjiloannou, for the interested party. Cur. adv. vult. 30 35 TRIANTAFYLLIDES P. read the following decision. In this recourse the applicant ischallenging the refusal of the respondent to review the amount of C£l,325 which was fixed asthe reserve price in respect of the sale by public auction of property of the applicant at Kalopanayiotis village, in relation to a mortgage debt due by her to the interested party. The recourse was filed on September 19, 1980, and the complained of refusal was communicated to the applicant by the respondent by a letter dated August 29,
2. 605 Trisntafyllides P. loakim v.Republic

(1981)At the time when the recourse was filed the sale by public auction was fixed to take place on September 28, 1980,but the applicant managed, through proceedings before the Nicosia District Court, to which I need not refer in detail, to postpone the sale and it is now been fixed on January 25,

1. 5 The applicant was notified of the said new date of the public auction by means of a letter addressed to her on December 8, 1980, which was received by her on December 18,
2. Shedidnottakeanystepsinthepresentproceedingsin relation to the said sale until January 13, 1981,when shefiledan applies- 10 tion asking for a provisional order postponing the sale till after the determination of this recourse. As our law stands at present, it appears that when a decision fixingthe reserve price is challenged,thisCourt has, prima facie, jurisdiction, under Article 146 of the Constitution to entertain 15 a recourse against such decision (see Cyprus Industrial and Mining Co. Ltd. (No. I) v. The Republic,

(1966)3 C.L.R. 467, Galip v. The Minister of Interior and another,

(1974)3 C.L.R. 94,and M.D.M. Estate DevelopmentsLtd. v. TheRepublic,

(1980)3 C.L.R. 54). Thejudgments in all these casesarefirstinstance 20 judgments of Judges of this Court, but by means of Revisional Jurisdiction Appeal No. 223, which has been filed against the judgment inM.D.M. EstateDevelopmentsLtd.,supra, the Supreme Court is being asked to hold that there is no jurisdiction to challenge by recourse the fixing of the reserve price in a case 25 such as the present on_v; as, however, that appeal is still being heard Ihave,for thetimebeing,totakeitthat thisCourt possesses jurisdiction to entertain the present recourse of the applicant. Jt is correct that by means of this recourse there is not being challenged the decision of the respondent to fix the reserve 30 price of the property in question, or to proceed with its sale by public auction, but there is challenged only the refusal of the respondent to review the said reserve price; I do not think, however, that this would be an obstacle to granting a provisional order suspending the effect of the decision fixing the reserve 35 price of the applicant's property and, thus, rendering impossible, for the timebeing, the carrying out ofthe sale,bypublic auction, of such property, "if the justice of the case so requires", in the sence of rule 13 of the Supreme Constitutional Court Rules 606 3 C.L.R. loaklm v. Republic Triantaijllides P. of Court; the position was similar in the case of Cyprus Industrial andMiningCo.Ltd.,(No. 2) v. TheRepublic,

(1966)3 CL.R. 474, where on an application for a provisional order suspending the sale by public auction of the property 5 concerned, a provisional order was made suspending the operation of the decision fixing the reserve price in relation to the said sale. What makes the present case different, as regards both its factual andlegal aspects,from thecasesof the Cyprus Industrial 10 and Mining Co. Ltd., (No. 1),.supra, and Cyprus Industrial and MiningCo. Ltd., (No. 2), supra; is that in tte said cases there had been challenged the decision of the Director of the, Lands and Surveys Department fixing the reserve price after an application for the review of the said price had been made 15 by the mortgagor, under section 6 of the Immovable Property (Restriction of Sales) Law, Cap. 223, whereas in the present case the review of the reserve price has not only been made. but has, also, been confirmed—as it appears from the material before me—by a decision of the respondent which wascommu20 nicated to the applicant by a letter dated September 28,

1. The applicant has, then, sought, later, by means of a letter dated August 14, 1980, which was received by the respondent on August 21, 1980, a further review by the respondent of ths reserve price and it is against the r.-fusal of such further review 25 that the present recourse has been filed; and no recourse was filed against the initial review of the reserve price under section 6 of Cap.
2. At the present stage of the proceedings, and without pronouncingfinallyin this connection, I must say that I have 30 serious doubts whether the present recourse of the applicant is really likely to succeed eventually, because it appears that it wasnot open to the applicant to seeka further review of the reserve price, as she has done by means of her aforesaid letter of August 14, 1980;and I say this, in the light of the relevant 35 provisions of Cap. 223, such as, in particular, sections 6, 8 and 9 of Cap. 223,as amended, inter alia, by the immovable Property (Restriction of Sales) (Amendment) Law, 1966 (Law 60/66). It is well established that one of the main considerations, 40 in granting or refusing a provisional order, are the merits of 607 TriantafyUidcs P. loakim v. Republic

(1981)the case in which the provisional• order is applied for (soe, inter alia, Galazi v. The Minister of Education,

(1967)3 C.L.R. 577, 580, Miltiadous v. The Republic,

(1972)3 C.L.R. 341, 352, Petrolina Ltd., v. The Republic,

(1977)3 C.L.R. 173, 179, and Markitsis v. The Attorney-General,

(1980)3 C.L.R. 369, 376. 5 As I have already indicated, I am, to say the least, not satisfied, on the basis of the material and arguments at present before me, that this recourse is likely to be successful in the end; and this is a consideration which I have to take into 10 account for the purpose of deciding on this application for a provisional order. 1 would, also, add that, in the light of the history of the events in this case, it appears, at this stage, that the administrative action complained of by the applicant is of a confirma- 15 tory nature and it could not, therefore, be challenged by means of the present recourse under Article 146 of the Constitution. Needless to say, my view, at this stage, as to the merits of this case, do:s not prejudge, in any way, what the final outcome of this recourse will b? after a full hearing of arguments 20 on the part of counsel for the parties. I have, also, taken into account that the mortgage debt, in aspect of which it is sought to sell the property of the applicant, has become also a judgment debt by means of a consent judgment in action No. 5095/77 in the District Court of Nicosia 25 and that by means of such consent judgment, which was given on September 14, 1978, the applicant undertook, in effect, to pay off the debt to the interested party by instalments, but has failed to do so. Furthermore, though the applicant knew from December 30 18, 1980, that the sale was due to take place on January 25, 1981, she did not file the present application for a provisional order until January 13, 1981, not exhibiting, thus, genuine urgency; and this factor forces me to look at the present application as yet another attempt to delay the interested party in 35 securing what is legitimately due to him, through the sale of the property of the applicant for purposes of satisfaction of the debt due to him. 608 3 C.L.R. Ioaklm v. Republic TriarUafjHides P. For all the foregoing reasons I have not been convinced that this is a case in which, as envisaged by the aforesaid rule 13, thejustice of the case requires the making of a provisional order as applied for by the applicant and, consequently, this 5 appUcation isdismissed with an order that the applicant should bear the costs which havebeen incurred bythe interested party in respect of it. I am not, however, making an order against the applicant regarding the costs of the respondent. Application dismissed. Orderfor 10 costs as above. 609