Court dismisses application for periodical payments due to defendant's inability to pay from low pension.

[*315] 1983 Nov.10

(N. NICOLAOU, D.J.)

IN THE DISTRICT COURT OP NICOSIA

The Republic of Cyprus, through Attorney-General,

Plaintiff,

v.

Cleanthis Stylianou,

Defendant.

(Action No.5195/81).

Judgment - Execution of - Periodical payments - The Civil Procedure Law, Cap.6, Part IX - The principles that should guide the Court in the exercise of his powers under said Part of Cap. 6.

H. Panayides for the Applicants.

Th. Symeon (Miss), for D. Papachrysostomou, for the Respondent.

I. Stratis also present on behalf of District Officer Nicosia.

JUDGMENT

The judgment of the Court was delivered by:

N.NICOLAOU, D.J.: The applicant judgmentcreditor, the Republic of Cyprus, obtained Judgment against the defendant on 9th December 1981, for the sum of £100 with interest thereon, at the rate of 9% per annum as from 24/11/78 to final payment, plus £18.500 costs.

The plaintiffs on 18/2/83, filed the present application by which they seek an order under the provisions of Part IX of the Civil Procedure Law, Cap.6, for the payment of the above Judgment-debt by monthly or other periodical payments. [*316]

The applicant’s affidavit which is attached on their application, is inter-alia stating that the defendant has failed to pay any part of the above Judgment-debt, and/the writ of movables issued on 29/12/81, has been returned unpaid on 15/2/82 due to the lack of existence of any movable property. John Stratis, who swore this affidavit on behalf of plaintiffs, has further stated that according to his belief and knowledge, and that according to the defendant’s means, he is in a position to pay off the above judgment-debt by monthly payments of £10. No other information is given by the said deponent as to the means and/or earning capacity of the defendant.

On the other hand, the defendant-respondent opposed this application, and by an affidavit sworn by himself on 28 April 1983, he has inter-alia stated the following:-

“That he is 76 years of age, and his only income is a sum of £35. which he gets as old age pension from the Social Insurance.

That the debt, the subject matter of the present proceedings, represents an overpayment paid by the plaintiffs to the defendant by mistake, to enable him to accomodate himself in a house built for this purpose, a necessity that arose due to the Turkish invasion which occurred [*317] after the tragic events in Cyprus that ensured in 1974, as a consequence of which the respondent found himself amongst the unfortunate displaced persons.

“That he has no other income, with the use of which he can pay off his debts, and that he can hardly survive depending on the above stated pension.”

Plaintiffs cross-examined the defendant before the Court on the date of the hearing, as to his means and as to his ability, if any, to pay off the said judgment-debt. The respondent in fact, repeated the contents and allegations of his affidavit dated 28/4/83, but he further clarified that his pension is really £30 monthly, and not 35 which was by inadvertence mentioned in his affidavit filed in support of his opposition. The Plaintiffs, having in the meantime admitted this statement, I find that the respondent’s said pension is £30 monthly.

My task therefore, is to decide as to the ability of the defendant to pay off the above judgment-debt by monthly or other periodical payments, depending exclusively on the defendant’s evidence, as appearing before me, given that the plaintiffs have not produced to the Court any other evidence supporting their contentions.

The evidence placed before me, reveals that the defendant is a displaced person from Ayia Irini Kyrenias [*318] and that he is now residing at Pera Chorion Nisou, in a house situated next to his married daughter whose husband has died a year or so, in the past. He is about 74 to 76 years old with no earning ability due to age, and the only means used for his existence, if that is possible, is his monthly pension from the Social Insurance, amounting to £30. He is a cigarette smoker of about twenty cigarettes per day.

No other financial or monetary assistance is from any source supplied to him, although he has admitted that sometimes his daughter provides him with some meals.

The Supreme Court on a number of occasions, had the opportunity to discuss the principles that should guide the Court in the exercise of his powers under Part IX of the Civil Procedure Law.

In the case of National Bank of Greece v. Nlcos Trihinas,

(1976) 2 J.S.C. p. 411, a non exhaustive enumeration of the facts that will have a bearing on the decision of the Court is made which are the fo11owing:-

(a) The earnings of the judgment -debtor;

(b) The needs for his necessaries and those of his family, in which their age, if under 18, and their education are to be considered as ‘necessaries’;

(c) Any other obligations of the judgment-debtor to any third person; and [*319]

(d) The magnitude of the debt and the period of time required to pay it off.

In Rolandis, Louka and Soteriades Ltd., v. Andreas Koutsiou, (1970) 1 C.L.R. p. 25, it was indicated that expenses for cigarettes, drinks and other entertainment for the respondent his family, are not considered as necessaries.

And further down at page 413, Pikis Ag. P.D.C., as he then was, states:-

“In determining whether the debtor should be ordered to pay a judgment-debt by monthly instalments and, if so by what amount, a balance must be kept between the need to keep the instalments realistically within the means of the debtor, without at the same time frustrating the reasonable expectations of a creditor to receive his money back. Whereas a debtor must not be harrassed by having to pay a debt, one must not gain the impression that a debtor will, without sufficient cause, be allowed to write off his obligations. If this was to happen, business confidence would be seriously shaken, in an area where the public has a vital interest with adverse repercussions on business activities. [*320]

“Part IX of the Civil Procedure Law is a piece of legislation designed to create a meachnism for the payment of debt, out of the earnings of the debtor, where the debtor has no property that may be seized in execution and is otherwise unable to pay his debt immediately.”

Section 86 of the Civil Procedure Law, Cap.6, provides:-

“Where a judgment for the payment of money remains wholly or in part unsatisfied (whether a write of execution has been issued or not) the judgment-creditor may apply that the debtor be examined respecting his ability to make the payment.”

Section 88 provides:-

“On the appearance of the debtor before the Court he may be examined on oath by or on behalf of the creditor and by the Court, respecting his ability to pay the money and for the discovery of property applicable to the payment, and as to the disposal which he may have made of any property; and he shall be bound to produce on oath, or otherwise all books, papers and documents in his. possession or power relating to property applicable to the payment.” [*321]

Section 91 provides:-

“The Court may, if it thinks fit, upon or at any time after any such investigation, direct that the sum due under the judgment shall be paid by instalments at such times and in such amounts as it may think proper.”

Considering the totality of the evidence adduced before me, which reveals that the defendant is an over aged displaced person with the only income a very low pension with no earning ability due to old age, I feel it would cause a great injustice if he is ever ordered to pay any sum towards the payment off of the said judgment-debt to the Republic.

Bearing in mind the above stated authorities and weighing the evidence before me, I find that the respondent-defendant is not at all in a position to be ordered to pas any instalment, however small it may be, and for these reasons the application is therefore dismissed with no order as to costs.

Application dismissed.

No order as to costs.