Court dismisses application to stay eviction order from prior consent judgment, citing lack of jurisdiction and interference with Supreme Court functions.

[*413] 1985 April 10

(FR. NICOLAIDES, S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

The Republic of Cyprus, through The Attorney-General,

Plaintiff,

v.

Fereos Christopoulos and Others,

Defendants.

(Action No. 4043/83).

Injunctions - Interlocutory injunctions - Application for such an injunction staying, in effect, execution of an order issued by consent in another action, to which plaintiffs-applicants

were not parties - An attempt to set aside the consent order made by a party to the previous action by means of a new action, failed

both, at first instance, and on appeal - Present application cannot succeed as, otherwise, it would amount to interference with the functions of the Supreme Court.

Judgments and Orders - Execution of

- Stay of execution - The Courts of Justice Law, I960 (Law 14/60), section 47 and 0.40, R.11 of the Civil Procedure Rules - Application for interlocutory injunction staying execution of an eviction order filed (by the plaintiff, who was not a party to the action in which the order was issued) in another action - Principles applicable - Review of Authorities.

Injunctions - Interlocutory injunctions - See, Judgments and Orders - Exècution of - Stay of execution.

T. Papamichalopoullos for Cr. Ioannides, for Applicant-Plaintiff.

A. Stylianidou (Mrs.) for K. Michaelides, for Respondents-Defendants.

RULING

The following ruling was delivered by: -

FR. NICOLAIDES, S.D.J.:- By the present application the applicant-plaintiff applies for an interim order [*414]

(a) Restraining Respondent-Defendant

1 from proceeding with the execution of an order of eviction issued by consent in Action No. 2618/73 of the District Court of Limassol and or from interfering in any way with the shop, subject-matter of the said order, and to keep the status quo until the final determination of the present action, and

(b) Restraining Defendants-Respondents 2 and 3 from proceeding with the execution of the same order of eviction issued in Action No. 2618/73 of the District Court of Limassol against them and preventing them from alienating the shop, subjectmatter of the said order, and retaining the status quo until final determination of the present action.

As it appears from the affidavits filed in support of the application and the opposition, respondent 1obtained a judgment and order by consent in Action No. 2618/73 which he instituted against respondents 2 and 3. The said order was obtained by consent on 2.10.76. Since then a number of actions, appeals and other procedural measures were filed between respondent 1 and respondents 2 and 3. Part of the said proceedings was Action No. 723/78 instituted by respondents 2 and 3 in the District Court of Limassol by which it was prayed that the said by consent judgment and order in Action No. 2618/73 [*415] be set aside. The said Action No. 723/78 was dismissed by the trial Court and by the Supreme Court on appeal.

At the hearing of the present application, respondents 2 and 3 appeared and consented to the application against them. They consented to any order directing them not to proceed with the execution of an eviction order against them. A person against whom an order for eviction is pending naturally would be more than happy - in most of the cases - to avoid or delay the execution of such an eviction order, but respondents 2 and 3 accepted the responsibility to do an act which is not within their power to do. The simple question which immediately arises is what will happen if the Applicant is unsuccessful against respondent 1 in whose favour the eviction order was granted against respondents 2 and 3. The answer is equally simple. They will not, of course, be able to keep the obligation they, so lightly, accepted and will probably be held in contempt for something they can do absolutely nothing about. It is obvious that the application is turned against respondent 1 and the inclusion of respondents 2 and 3 as well as their eager consent is, to say the least, strange.[*416]

The application is based, inter alia, on s.9 of Cap. 6 and s.32 of the Courts of Justice Law No. 14/60. What is prayed for by the present application is actually an order staying the execution of the order of eviction. It seems that the plaintiff-applicant resorted to the proceedings envisaged by s. 32 of Law 14/60 as a last solution praying for the equitable remedy of an interlocutory injunction after all their attempts to obtain a stay of execution in Action No. 2618/73 proved fruitless.

I think that the first question which must be answered is whether the Court has jurisdiction to grant a stay of execution by way of injunction in another action.

Section 47 of the Courts of Justice Law, No. 14/60, provides:

“The judgment of every court shall, subject to any direction contained therein to the contrary and notwithstanding that the same shall have been made in default of pleading or of appearance of any party, be binding on all parties to the action immediately on

the making thereof and notwithstanding any appearance against the same, but the court by which such judgment is given, or any court

[*417] having jurisdiction to hear such judgment on appeal, may at any time, if it shall so think fit, and whether an order for execution shall have been issued or not, direct that execution of such judgment be suspended for such time and subject to such terms or otherwise as to such court may seem just”.

From the wording of s.47 it is obvious that the only Court which has jurisdiction to grant a stay of execution is the Court by which a judgment or order was given or an Appellate Court. On the other hand Order 40, r. 11 provides:

“Any party against whom judgment has been given on an order made may apply to the Court or a judge for a stay of execution or other relief against such judgment upon the ground of facts which have arisen too late to be pleaded; and the Court or judge may give such relief and upon such terms as may be just”.

From a mere reading of Order 40 it is again obvious that only a party against whom judgment has been given may apply to the Court for a stay of execution or other relief against such judgment and the power of the Court to grant a stay of execution under the said rule is discretionary. [*418]

The well-known principle of the finality of the proceedings trickered section 47 of Law 14/60. Any dispute must eventually come to an end and the judgment or order of the Court is binding on all parties. Furthermore it is definitely established by Order 35, r.18 that even an appeal shall not operate as a stay of execution except so far as the Court appealed from or the Court of Appeal or a judge of either Court may order so.

It is worth noting that in England all the authorities on the stay of execution are concerned with a stay pending an appeal. It is also worth noting that section 41 of the English Supreme Court of Judicature (Consolidation) Act 1925, provides that no cause or proceeding at any time pending in the High Court or in the Court of Appeal shall be restrained by prohibition or injunction, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding may be relied on by way of defence thereto. In Wright v. Redgrave (1879) 11 Ch. D. 24, 34, it was held that the terms of the above section are absolute and without any exception so that there cannot be any prohibition or injunction by one Division of the Court to restrain pending proceedings in another Division.[*419]

But there is jurisdiction to grant an injunction to restrain a person from instituting proceedings in any Court and rarely an order may be made by any Division of the High Court to prohibit proceedings in an inferior court by way of injunction. (See Hedley v. Bates (1880) 13 Ch. D. 498).

A person who is not a party to an action cannot apply for a stay of proceedings under proviso (b) of section 41 of the Supreme Court of Judicature Act, 1925, unless he can establish that the action is a fraud upon him either because the plaintiff had agreed with him for good consideration not to bring such action or for some other good reason. (Gore v. Van Der Lann

(1967) 1 ALL E.R. 360 C.A.).

The term “proceeding” as used in section

41 of the said act includes executions under the final judgment. (See Wright v. Redgrave (supra), and the Court cannot restrain a party by injunction from taking steps to enforce a garnishee order (Llewellyin v. Carrickford (1970) 2 ALL E.R. 24).

In Action No. 2618/73 a consent judgment was obtained. The defendants 2 and 3 failed to comply with the order issued in the said action and instituted Action 723/78 praying for the cancellation of the judgment given in Action No. 2618/73. The said Action No. 723/78 was dismissed and the appeal against the judgment of the trial Court was also dismissed [*420] by the Supreme Court. Today a stay of execution is prayed for by way of injunction. I feel that if I would entertain such an application I would interfere with the jurisdiction of the Supreme Court which dismissed the appeal.

In Athanassiou v. The Attorney-General (1969) 1 C.L.R. 439, Josephides, J., said at pp.452-453:

“Now, the District Court of Nicosia is a statutory Court of first instance subordinate or inferior to the Supreme Court of the Republic, such District Court having been established under the provisions of the Courts of Justice Law, 1960, which Law was made pursuant to the provisions of Articles 158 and 152.1 of the Constitution. The Supreme Court exercises the judicial power in the Republic and is the highest appellate Court in the land and has jurisdiction to hear and determine all appeals from the District Courts (see Articles 152.1 and 155.1 of the Constitution; the Courts of Justice Law, 1960, section 25; and the Administration of Justice (Miscellaneous Provisions) Law, 1964). All these powers are subject to any rules of Court which may be made by the Supreme Court. [*421]

No provision is to be found either in the Courts of Justice Law, 1960, or any other statute conferring on a District Court the power or jurisdiction to make any order or give any judgment latering the effect of, let alone setting aside, a judgment or order of the Supreme Court. Order 33, r.5, of the Civil Procedure Rules, would be applicable by the District Court “in a proper case” (rule 5) if the Supreme Court had not dealt with the judgment of the District Court in question on appeal, and if it had not set such judgment aside and entered judgment for the piaintiff……”.

In the same judgment and at p. 455 what Sir Jocelyn Simon P., said in other context in Edwards v. Edwards (1968) 1 W.L.R. 149, at p.150 was repeated:

“It is desirable that disputes within society should be brought to an end as soon as reasonably practical and should not be allowed to drag festeringly on for an indefinite period. That last principle finds expression in a maxim which English Law took over from the Roman Law: it is in the public interest that there should be some end to litigation. .... As long ago as Magna Carta, King John was made to promise not only that justice should not be denied but also that it should not be delayed; and there have [*422] been times in our history when various Courts have come under severe criticism for their procedural delays”.

There should be finality in litigation and the District Court has no jurisdiction to deal with any application or other proceeding which may alter or weaken the effect of a judgment of the Supreme Court in any way whatsoever. I am of the opinion that granting the stay of execution applied for, would amount to interference with the functions of the Supreme Court.

We must not also lose sight of the fact that Order 40, r.11 strictly provides that an application for a stay of execution may be made by the party against whom such judgment has been given. In the present case the applicant-plaintiff was not a party in Action No. 2618/73 and therefore they cannot apply under the said Order for a stay of execution.

In view of all the reasons I endeavoured to explain above, I find that I have no jurisdiction to grant a stay of execution of a judgment or an order given in another action and therefore the application is dismissed with costs against applicant.

Application dismissed with costs against applicant.