Court dismisses appeal against garnishee order where subsequent agreement was not a novation discharging judgment debt.

[*248] 1967 March 2

IN THE SUPREME COURT OF CYPRUS

ON APPEAL AND ORIGINAL JURISDICTION

(VASSILIADES, P., TRIANTAPYILIDES, LOIZOU, JJ.)

APPELLATE JURISDICTION

Limassol Wine Association Ltd.,

Appellants-Defendants,

v.

Bank of Cyprus Ltd.,

Respondents-Plaintiffs,

and

Vine Products Scheme,

Garnishees.

(Civil Appeal No.4601)

Appeals in Civil Cases - Order - Garnishee Order - Appeal against Order of trial Court directing that an amount due by Garnishees to Appellants be paid to Respondents - Towards a judgment debt due by Appellants to Respondents - Subsequent agreement - Not a novation doing away with the judgment debt - Perfectly open to Respondents to seek to enforce judgment debt by due process of execution - Likewise proper for the trial Court to make the Order appealed against.

Garnishee Order - See under "APPEALS IN CIVIL CASES" above.

J. Potamitis, for the Appellants.

G. Cacoyiannis, for the Respondents

Garnishees not taking part in the appeal.

JUDGMENT

VASSILIADES. P: The Judgment of the Court will be delivered by Mr. Justice Triantafyllides.

TRIANTAFYILIDES, J: The Appellants appeal against an Order made by the District Court of Limassol, on the 25th June, 1966 directing that A amount of £1,447.388mils due by the Vine Products Scheme - the garnishees in these proceedings - to the Appellants be paid to the Respondents [*249] towards a judgment debt in civil action No.139/63 of the District Court of Limassol, due by the Appellants to the Respondents.

The relevant facts are sufficiently set out in the judgment of the trial Court and they need only he summarized as follows

The Appellants, are a limited company and along with an associate company of theirs, Cleanthis Christoforoii and Bros. Ltd., and one of the directors and shareholders of both companies, the late Cleanthis Christoforou, were all heavily indebted to the Respondents; one of such liabilities was the aforesaid judgment debt.

On the 18th May, 1964, an oral agreement was reached in Nicosia between Zenon and Takis Christoforou - brothers of the deceased Cleanthis Christoforou and, also, directors and shareholders of the two companies concerned - and representatives of the Respondents, by virtue of which it was stipulated, in substance, that upon the transfer of the property of Cleanthis Christoforou and of the two indebted companies to the Respondents, all relevant liabilities, including the judgment debt in question, would be deemed as having been discharged; it is clear that the reason behind such agreement was the fact that there did not appear to exist readily available assets to meet the whole of the indebtedness concerned.

It is the contention of the Appellants that they have duly performed their side of the said agreement; on the other hand the Respondents contend that this is not so because the Appellants ought to have transferred to them not only the in movables but also the movables, under [*250] such agreement.

Furthermore the Appellants have argued that the agreement in question amounts to a novation as a result of which the judgment debt in civil action No.139/63 could no longer he executed as such.

On this latter point the trial Court has found against the appellants. Bearing in mind the cause for, and the circumstances in, which the relevant agreement was concluded, we take the view that it was properly open to the trial Court, on the material before it, not to treat the said agreement as a novation doing away with the judgment debt as such. It was indeed, nothing more than an agreement as to the mode of payment off of outstanding and impossible to settle otherwise, liabilities, including the judgment debt in question; therefore, it was perfectly open to the Respondents, to seek to enforce the judgment debt by due process of execution and it was likewise proper for the trial Court to make the Order which has been appealed p against.

Nor could it be said that the said judgment debt had to be deemed as paid off, through due performance by the Appellants of the agreement of the 18th May, 1964 because we do find ourselves unable to interfere with the

conclusion reached by the trial Court to the effect that it was intended to transfer to Respondents both the immovable and movable property of the two companies concerned and of Clean this Christoforou. Such conclusion was reached after hearing the evidence given by those involved on both sides and it was essentially a decision based on the trial Court's view of their credibility; it was the only reasonable one, too.

In the circumstances this appeal is dismissed with costs

Appeal dismissed.