Court allows setting aside consent order due to failure to renew judgment registration as a charge.

[*503] 1984 March 16

(NIKITKS, P.D.C.)

IN THE DISTRICT COURT OF NICOSIA.

1. M.D.M. Estate Developments Ltd.,

2.Nicos S. Seretis,

Plaintiffs,

V.

1. N.P. Lanitis Co.Ltd.,

2. The Republic of Cyprus through The Attorney-General,

Defendants.

(Action No.4395/83)

Judgments and Orders - Consent order

- It must be given full contractual effect - It can only be set aside on grounds that invalidate a contract - Absence of consideration or ousting the jurisdiction of the Court - There are grounds on which such order may be set aside.

Contracts -Consideration - Definition of - Forebearance to sue - A Valid consideration - Consent order - Forbearance by defendants to go ahead with the hearing of an application, filed by the plaintiffs under the Debtors Relief Law, 1979, coupled with the fact that they gave time to the plaintiffs in respect of the payment of their debt is a valid consideration.

Estoppel - Consent order - Order acted upon by Defendants - Plaintiffs estopped from raising now the same question.

Estoppel - Estoppel by representation - Principles applicable .

Contracts - Ousting the jurisdiction of the Court - The Contract Law, Cap. 149, section 28 - Ambit of - A partial, as opposed to an absolute, restriction is outside the ambit of the section.

Judgment - Execution of - Registration of Judgment as a charge on judgment debtor’s immovable property - A method of execution - The Civil Procedure Law, Cap.6, sections 53 and 56 - Effect of failure by judgment creditor to apply within the time limit provided by s.56 for prolongation of the memorandum registered under s.53 - Said time limit was not suspended by the [*504] Suspension of Prescription Law 57/64, as amended, because execution of a judgment is not an “action” within the meaning of section 2 of the s aid law - By reason of his failure to renew the memorandum as aforesaid, plaintiff 2 ceased to be a “creditor” in the sense of section 2 of Cap.223 because under s.42 of The Immovable Property (Transfer and Mortgage) Law 9/1965, a mere judgment creditor is not entitled to any part of the proceeds of sale of the mortgaged property and, therefore, he was not entitled to receive any notice of the intended sale of the mortgaged property under s.5 of the same law, namely Cap. 223.

Mortgages - Powers of Court to order sale of mortgaged property on any terms - Proceeds of sale - A mere judgment creditor unlike a judgment creditor who has registered the judgment under section 53 of Cap.6 does not have any right under s.42 of Law 9/65 to any part of the proceeds of sale.

Words and Phrases: “Action” in section 2 of The Suspension of Prescription Law 57/64, as amended, and “Creditor” in section 2 of Cap. 223.

Chr. Triantafyllides, for the Plaintiffs-Applicants.

A. Anastasiades, for the Defendants - Respondents 1.

A. Vassiliades, for Defendant-Respondent 2.

RULING

The ruling of the Court was delivered by:

NIKITAS, P .D .C.: By their action commenced by a generally indorsed writ on 26th July 1983 the plaintiffs seek declarations for setting aside on various grounds a consent order made in proceedings under the Debtors Relief (Temporary Provisions) Law 24/79. The case has a long [*505] history going back to 1971, and to make it comprehensible it is necessary that I should state briefly the events that led up to this action and the interim order, subject matter of the motion before me, that was granted by another Judge of the Court.

By a mortgage No. Y966/71 dated 24th March 1971 a building site at Ay. Omologites Quarter, Nicosia, under registration No. A372 was charged by plaintiffs 1 to the defendants 1 to secure the repayment of the principal sum of £50,000.- advanced by defendants 1, whom I will call hereafter for convenience as the Defendants, and interest thereon. Plaintiffs 1 (hereafter to be referred to as the plaintiffs) failed to honour their obligations under the mortgage and on 23rd October 1972 the defendants obtained judgment against plaintiffs in action No.1823/72 for the sums due under the mortgage in addition to an order for the sale of the mortgaged property. In parenthesis a building consisting of 27 apartments was erected on that plot of land but though the work advanced considerably the building has not up to now been entirely completed.

The defendants applied on 2nd August 1973 for the sale of the property pursuant to the order of the Court and the District Lands Office fixed the reserve price which it subsequently reviewed at the instance of the plaintiffs after holding a local inquiry in accordance [*506] with the procedure laid down in s.6 of the Immovable Property (Restriction of Sales) Law, Cap.223. The reserve price was assessed at £162,000. - and by a registered letter dated the 9th October 1975 all parties concerned including plaintiffs were notified accordingly.

As it emerges from the affidavit evidence the sale was postponed to 31st October 1076 by virtue of a Court order made by consent in application No.20/75 and was eventually refixed by the D.L.O. for the 12th June 1977. The appropriate notices concerning the reserve price and the sale were issued and communicated to the interested parties this

time including plaintiff 2 who on 11th October 1976 obtained judgment against plaintiffs in action No 178O/76 for £3,500.-. Plaintiff 2 registered this judgment and lodged a

memorandum on 23rd April 1977 which is exh.3 in these proceedings charging thereby plaintiffs property with the payment of the judgment debt in question. Incidentally the reserve price was also mentioned in the notice of sale posted at the place at which the sale was appointed to be held.

The sale, which as I said was due to take place on the 12th June 1977, was called off on the application of the lawyers then acting on behalf of plaintiffs who sought by their letter dated 3rd June 1977 reassessment of the reserve price. The D.I.O. having considered the matter afresh reached the same conclusion, that is to

say, the reserve price remained unchanged. That decision [*507] was successfully challenged by plaintiffs before the Supreme Court

and it was annulled on account of the nonparticipation of the village authority concerned in the re-fixing of the reserve price by the District Lands Officer - see the judgment of Malachtos J. reported in (1980) 3 C.L.R. 54. However, on appeal the judgment was reversed the Court holding by majority that the fixing of the reserve price under ss.4 and 6 of the Immovable Property (Restriction of Sales) Law is an act falling within the domain of private law that regulates civil law rights. The essence of the decision was that the Court lacked jurisdiction to take congnisance of the matter. See. Republic of Cyprus, through 1. The Minister of _Interior, 2.The Director, of Lands and Surveys v. MD.M. Estate Developments Ltd(l982) 3 C.L.R. 642. See further Kalisperas Estates Co. Ltd. and Others v. The Minister of Interior and Another (1983) 3 C.L.R. 509.

The aftermath of that long legal dispute was that the D.L.O. put up the property for sale again on 16th January 1983. New notices were dispatched. The notice to plaintiff 2 was sent to his advocate Mr. A. Hadjioannou who signed the memorandum on behalf of plaintiff 2 as his agent and whose address was inserted in the memorandum exh. 3. It is to be noted that all previous notices to plaintiff 2 were also addressed to his lawyer as exh. 3 did not contain the residential [*508] address of plaintiff 2.

What plaintiffs did next was to apply for relief under the provisions of the Debtors Relief Law 1979. The file of application No. 108/82 is exh. 2 in the case. Plaintiffs claimed a declaration that they were stricken debtors within the meaning of that Law but in due course acknowledged that they could not be considered as such. However the parties, that is, plaintiffs and defendants, reached a compromise on the strength of which a consent order was made on 12th February 1983. It is important to set out the material part of it in full:

"ΤΟ ΔΙΚΑΣΤΗΡΙΟΝ

ΤΟΥΤΟ ΕΚ ΣΥΜΦΩΝΟΥ ΔΙΑ ΤΟΥ ΠΑΡΟΝΤΟΣ ΑΠΟΦΑΣΙΖΕΙ ΚΑΙ ΔΙΑΤΑΤΤΕΙ όπως το διάταγμα

αναστολής καταναγκαστικής πωλήσεως της αιτητρίας εταιρείας εκδοθέν την 29.12.82

ακυρωθεί και δη διά του παρόντος ακυρούται.

ΚΑΙ ΤΟ ΔΙΚΑΣΤΗΡΙΟΝ ΤΟΥΤΟ ΠΕΡΑΙΤΕΡΩ ΔΙΑΤΑΤΤΕΙ ΩΣ ΑΚΟΛΟΥΔΩΣ:-

Η αναβληθείσα πώλησις της ακινήτου

περιουσίας της αιτητρίας εταιρείας της ευρισκομένης εις Αγίους Ομολογητάς

υπ'αρ. εγγραφής Α 371 και η οποία ήτο ορισμένη διά την 16.1.83 ορίζεται, από

τούδε όπως λάβει χώραν υπό του επαρχιακού Κτηματολογικού Γραφείου Λευκωσίας την

τελευταίαν Κυριακήν του μηνός Ιουλίου, 1983[*509] εις την ενορίαν Αγ. Ομολογητών εις χρόνον και τόπον ως ήθελε καθορισθεί, υπό του

Κτηματολογίου συμφώνως προς τους κανονισμούς πωλήσεως.

Η καθορισθείσα

πώλησις θα πραγματοποιηθή από το Κτηματολόγιον χωρίς να προβληθή υπό της

αιτητρίας εταιρείας οιαδήποτε διαδικαστική ένστασις που να ματαιώνει την

συμφωνηθείσαν πώλησιν την 31.7.83 ούτε και θα ζητηθούν υπ' αυτής (δια τους

σκοπούς της πωλήσεως ταύτης) αλλοίωσις ή αναθεώρησις της ήδη καθορισθείσης υπό

του Κτηματολογίου επιφυλαχθείσης τιμής πωλήσεως.

Εάν μέχρι της 15ης

Ιουλίου 1983, συμπεριλαμβανομένης, η αιτήτρια εταιρεία καταβάλη εις τους καθ'

ων η αίτησις τοις μετρητοίς το ποσόν των £20,000.-έναντι των τόκων της οφειλής

της, τότε η ως άνω ορισθείσα ημερομηνία πωλήσεως μετατίθεται δια την τελευταίαν

Κυριακήν του μηνός

Οκτωβρίου, δηλ. 30.10.83 υπό τους ιδίους ως άνω αναφερομένους όρους."

To complete the statement of facts on 2nd July 1983 the D.L.O. notified by registered letter the two plaintiffs of the time and place of sale. The notice to plaintiff 2 was again sent to his lawyer’s address and was not returned. Mr. Chr. Ioannou, a land clerk well conversant with all the facts of this case in his affidavit [*510] filed in support of the opposition of defendant 2 refers to the action taken by his department after the order of the Court. He says in para. 20:

" ......Στις 2.7.83 το

γραφείο μου εξέδωσε αγγελίες πωλήσεως για την 31.7.83, σύμφωνα με την πιο πάνω

απόφαση. Οι αγγελίες πωλήσεως εκδόθηκαν πριν τις 15.7.83 για να υπάρχει

συμμόρφωση με τους Κανονισμούς πωλήσεως και για να δοθεί αρκετός χρόνος στα

ενδιαφερόμενα μέρη να λάβουν γνώση έγκαιρα της ημερομηνίας του χρόνου και του

τόπου της πωλήσεως και με την προϋπόθεση πως το γραφείο μου θα ανέστελλε την πώλησιν σύμφωνα με

την διαταγή του δικαστηρίου εάν η οφειλέτιδα εταιρεία πλήρωνε το ποσό των

£20,000 μέχρι της 15.7.83 πράγμα που δεν έκαμε."

Indeed it was not in dispute that no such payment was made.

As I said at the outset on 26th July 1983 the plaintiffs commenced this action and thus the marathon of proceedings goes on. The interim order granted two days later restrains in effect the D.L.O. from proceeding with the sale of plaintiffs’ property until the determination of the action.

The main submissions of counsel for plaintiffs [*511] may be summarised in this way: The underlying basis of the consent order of the 12th February 1983 was the compromise reached between the parties. The order has, therefore, contractual effect and may be set aside on any ground that will be sufficient to invalidate an ordinary contract. On the footing that the order is contractual in nature it should be declared void for want of consideration. Alternatively part of the consideration given by plaintiffs, that is, their promise not to resort to any procedural objection that could possibly frustrate the sale of the property agreed to be held on 31st July 1983 and the further promise not to take any action for the review of the reserve price is in effect an agreement ousting the jurisdiction of the courts, it is contrary to public policy, and consequently unlawful. By virtue of the provisions of s.23 of the Contract Law, Cap. 149 the relevant stipulation is void and the consent order in which it is incorporated is in consequence vitiated by illegality.

In any event counsel argued the agreement contravenes the provisions of s.28 of the Contract Law that renders void agreements in restraint of legal proceedings as well as Article 30(3) (b) of the Constitution and the corresponding provision of the European Convention of Human Rights which was ratified by Cyprus and which protect s the right of every person to present his case before a Court of law. In counsel’s submission severance of the illegal from the legal element in the order is not possible [*512] in the present situation as the consideration is entire. There can be no severance of the good part from the rest and the whole of the compromise or order cannot be enforced.

The point was also taken that neither the Court nor the parties themselves had power to appoint a date for the sale of the property. It was submitted that the appropriate organ for doing so is the District Lands Officer as provided in s.3 of Cap.223.

I can say straightway that the argument cannot be accepted. The law does not give exclusive jurisdiction in the matter to the District Lands Officer. The Court has unfettered authority under several legislative

provisions to order the sale of mortgaged property on any terms. See, for example, s.44 of the Immovable Property (Transfer and Mortgage) Law No.9/65. In the present

case the Court in appointing the date of sale allowed ample time for any formalities concerning the sale to be complied with. No complaint has been made in this respect and in fact there is no evidence that the fixing of the date of sale by the Court damaged or prejudiced the plaintiffs’ or anybody else’s interests.

Lastly the point was raised that the second plaintiff was a creditor within the meaning of s.2 of Cap.223 and was entitled as such to receive notice of the [*513] reserve price fixed by the D.L.O., and that the service of such notice was bad inasmuch as it was not sent to his last place of residence as prescribed in s.5 of the Law but was addressed to his lawyer. In par a. 2 of his affidavit plaintiff 2- says:

"Ως δανειστής των αιτητών 1, οι καθ' ων η αίτησις ώφειλαν βάσει της σχετικής νομοθεσίας

όπως μου δώσουν ορισμένας ειδοποιήσεις. Ουδέν τοιούτον έπραξαν. Επομένως δεν μου εδόθη η ευκαιρία όπως

προβώ εις όλα τα δικαιώματα τα οποία μου παρέχει ο νόμος."

The arguments of counsel for defendants in reply can be abbreviated as follows: The forbearance of defendants to proceed with the hearing of application 108/82 in which plaintiffs had no chance of succeeding in view of their admission that they were not entitled to protection under the law in conjunction with the fact that defendants gave plaintiffs time to pay is, according to authority, sufficient consideration.

The agreement embodied in the order did not purport to oust the jurisdiction of the Court as it was open to plaintiffs to raise any point or objection they wished in relation to the reserve price. Incidentally, the sale of the 1 6th January 1983 was stayed pursuant to [*514] an interim order obtained on an ex parte motion in the main application and the subject settlement was declared on the date that the motion was set down for trial.

Counsel for defendants drew my attention, interalia, to Anant Das v. Ashburner & Co. (1876) 1 All E.R. 267, a case decided under s.28 of the Indian Contract Act in which it was held that an agreement not to appeal against a decree is not a void agreement and is not prohibited by s.28. It should be observed here that s.28 of the law is couched in the same terms as the Indian provision. In the above case A in consideration of giving B time to satisfy a decree against him B agreed not to appeal against the decree and did appeal. The ratio decidendi appears in the following exract from the judgment of the Indian Court.

“By the agreement not to appeal, for which the indulgence granted by the respondents was a good consideration, the appellant did not restrict himself absolutely from enforcing a right under or in respect of any contract. He forewent his right to question in appeal the decidion which had been passed by an ordinary tribunal. Such an agreement is in our judgment prohibited neither by the language nor the spirit of the Contract Act, and an Appellate Court is bound by the rules of justice [*515] equity, and good conscience to give effect to it and to refuse to allow the party bound by it to proceed with the appeal.”

See also Munshi Amir A1i v. Maharani_ Inderjit Koer (1871) 9 B.L.R. 460. I was also referred to a statement in Dutt on Contract, 4th ed, page 319 which is founded on a case appearing at the footnotes and reads as follows:

“The prohibition mentioned in the section is limited to agreements in restraint of legal proceedings for enforcing rights under a contract, it does not include rights under a decree.”

According to counsel even if the Court finds that the part of the order that provides that plaintiffs will not take any action in relation to the reserve price and the date of sale is bad as ousting the jurisdiction of the Court the doctrine of severability applies and the Court should allow Severance.

It was also submitted that since plaintiff 2 had not applied under s.56 of the Civil Procedure Law, Cap.6, for prolongation of the memorandum, it had expired on 22nd April 1977. Plaintiff 2 could not, therefore, be considered as a creditor within the meaning of that expression occurring in s.2 of Cap.223 and the D.L.O. was not bound in law to give him notice. The provisions of [*516] the Suspension of Prescription Law 1964 (Law. No.57/64) as amended, so the argument runs, does not cover the present situation. That legislation is applicable only to the right of action and does not extend to matters of execution.

Even if one takes the view that the memorandum was in force at the material time the notice given by the D.L.O. to the lawyer of plaintiff 2 must be considered as valid. This is so because plaintiff failed to give his residential address to the D.L.O. and furnished that of his agent instead and by his conduct he must be taken to have waived the benefit given to him by the law. Counsel said that in any event Cap.223 was intended to deal with private rights only and in the circumstances plaintiff 2 is estopped from asserting the irregularity.

Counsel for defendant 2 adopted the submissions of counsel for the first defendants except that he said that the suspension of the period of limitation applies also to proceedings for the registration of a judgment under the provisions of the Civil Procedure Law.

Those being in a summary the rival contentions of the parties I will now consider the case of the first plaintiffs. It is well established on the authorities that a consent order must be given full contractual effect and can only be set aside on grounds which would [*517] invalidate a contract. This .emerges from Huddersfield Bank v. Lister & Son (1895-9) All L. R. Rep.868, one of the earliest cases on the subject. The headnote of the case reads:

“A consent order made by the court to give effect to the compromise of a legal elaim by the parties concerned can be set aside, not only on the ground of fraud, but for any reason which would afford a ground for setting aside the agreement on which the order was based, e.g., on the ground of a common mistake regarding a material fact.”

In the more recent case Purcell v. F.C. Triggel Ltd (1970) 3 All E.R. 671 the principle was affirmed and was held to apply to both final and interlocutory consent orders. In Chanel Ltd v. F.D. Woolworth & Co. (1981 ) 1 All E.R. 745 the defendants’ application for discharging or modifying an order made by consent on an earlier motion in the action was dismissed, the Court holding that the defendants would not be allowed to re-open a consent order “since a party was not entitled to a re-hearing unless there had been some significant change of circumstances or he had become aware of facts which he could not. reasonably have known or found out by the time of the original hearing”. See also Siebe Gorman and Co. Ltd., v. Preupac Ltd. (1982) 1 All E.R. 377. [*518]

These are salutary principles for if consent orders or judgments were readily upset by the courts their value would he undermined and parties would be discouraged from resolving their differences in this way. See in this connection the observations of Triantafyllides P. in Re Drousiotis (1981) 1 C.L.R. 708.

The order in the instant case represented a contract and it follows that it can be set aside if it is found that there was no consideration or that it amounted to an agreement ousting the jurisdiction of the courts. Parenthetically, the subject order is referred to in the writ and the affidavit evidence filed on behalf of the plaintiffs as a rule of Court but it is, I think obvious from a mere reading of the relevant minute of the Court contained in exh.2 that the court made a consent order on the footing of an agreement between the parties. Though the two terms are often used as denoting the same thing nevertheless there is a distinction between them as explained by David Foskett in his work The Law and Practice of Compromise at page 124.

Consideration was defined in Currie v. Misa (1875) L.R. 10 Ex. 162 as follows:

“A valuable consideration in the sense of the law may consist either in some right, interest, [*519] profit or benefit accruing to one party or some forbearance detriment loss or responsibility given, suffered or undertaken by the order.”

Thus forbearance to sue constitutes valuable consideration. The matter was put by Bowen L.J. in Mi1es v. New Zealand Alford Estate Co.(1885) 32 Ch.D.266 at 291 as follows:

“...if an intending litigant bona fide borbears a right to litigate a question of law or fact which it is not vexatious or frivolous to litigate, he does give up something of value. It is. a mistake to suppose it is not an advantage... to be able to litigate his claim, even if it turns out to be wrong.”

As it was stressed in Calisher v. Bischoftscheim 39 Law Journal Q.B. p.181 a case cited to me by counsel for the defendants forbearance to sue is a valid consideration irrespective of the fact that “an action or legal proceedings have been already instituted or……were about to be instituted”.

In the case under discussion the forbearance of the defendants to go ahead with the hearing of application 108/82 coupled with the fact that they gave time to [*520] plaintiffs is, in my opinion, good consideration.

Though the plaintiffs in their writ do not claim any declaration or other remedy in relation to the reserve price it is plain that one of their basic complaints is that they were prevented by means of the order from contesting that matter. However, as it emerges from the terms of the order the plaintiffs agreed with full knowledge on their part and on the part of the lawyer then appearing for them that the property should be sold at the reserve price already fixed by the D.L.O. at £162,000.-. It is to be noted that Mr. N. Droushiotis plaintiffs’ managing director and owner of 99% of its shares was present in Court and what is more important the order was acted upon by the defendants. In my judgment the plaintiffs are estopped from raising now the same question. The view that I have taken is supported by the following passage in Spencer-Bower’s work Doctrine of Res Judicata, 2nd ed. p.37:

“Any judgment or order which in other respects answers to the description of a res judicata is none the less so because it was made in pursuance of the consent and agreement of the parties. It is true that, in such cases, the court is discharged from the duty of investigating, or (where the consent is given at a [*521] late stage in the proceedings) further investigating, the matters in controversy, and is not asked to, and. does not, pronounce a judicial opinion upon any of such matters; but it is non the less true also that, at the joint request of the parties, the tribunal gives judicial sanction and coercive authority to what those parties have settled between themselves, and in that way converts a mere agreement which, except in certain special cases the subject of express statutory provision in that behalf, could only operate as an agreement, and not as a bar, into a judicial decision on which a plea or res judicata may be founded. Accordingly judgments, orders, and awards by consent have always been hold no less efficacious as estoppels than other judgments, orders, or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not represent ation by conduct, rather than res judicats.”

The cases cited in support of the passage appear in the footnotes and include Cohen v. Jonesco (1926) K.B 119 and Kinch v. Walcott

(1929) A.C. 482 in which Lord Blanesburgh observed at p.493: [*522]

“Their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order......was aconsent order.”

On the question of illegality counsel for plaintiffs sought to justify his submission by reference, inter alia, to Baker v. Jones (1954) 2 All E.R. 553 and Re Davstone Estates Ltd Leases

(1969) 2 All E.R. 849. In those cases the agreements purported to oust completely the jurisdiction of the courts on Questions of law and on that ground were declared void as being contrary to public policy. The principle incorporated into s.28 is the same. It is clear from the relevant Indian cases law that s.28 aims at agreements “by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the courts”. It follows that when the restriction imposed is not absolute but partial, as in the present case, the agreement is outside the ambit of the section. The analogy between this case and the Anant Das case, cited supra, is obvious. Adopting the same approach and bearing in mind the history of thecase I find that the relevant part of the agreement that was incorporated in the order and the order itself is a valid one. [*523]

I shall consider next the case of plaintiff 2 The problem arising first is whether plaintiff 2 was entitled to notice as a creditor .under s.5 of Cap. 223.

Section 2 of Cap.223 defines “creditor” as

“any creditor who. may have a right to any part of the proceeds of sale, not being a mortgagee, where the sale of the property mortgaged is made at the. instance of another creditor;”

The proceeds of sale of mortgaged property are applied in satisfaction of the debts enumerated in s. 42 of Law 9/65 as amended and in the order of priority prescribed by that section, A more judgment creditor unlike a judgment creditor who has registered his judgment under s. 53 of the Civil Procedure Law does not have any right under s. 42 to any part of the proceeds of sale and accordingly .he does not rank as a creditor for present purposes as suggested by counsel for plaintiff 2. It is thereofore abundantly clear that the D.L.O. has no obligation whatever of notifying a judgment creditor unless he has complied with the requirements of the Civil Procedure Law.

That brings me to the point airising under Law 57/64, By s.2 of the law the periods of limitation, prescribed by any .statute are suspended for an indefinite time.[*524]

The phrase "χρόνος παραγραφής" (period of prescription) le defined in s.2 in the following terms:

" 'χρόνος παραγραφής' σημαίνει

οιανδήποτε χρονικήν περίοδον καθοριζομένη εν οιαδήποτε διατάξει, νομοθετικής

φύσεως, ισχυούσης κατά την ημερομηνίαν ενάρξεως της ισχύος του παρόντος Νόμου,

εν η απαιτείται η έναρξις οιασδήποτε αγωγής εις ην αφορά η διάταξις αύτη."

It thus becomes necessary to construe the meaning of the term action, And one starts with the definition given in the same section:

" 'αγωγή' περιλαμβάνει

πάσαν αστικήν διαδικασίαν αρχομένην ενώπιον οιουδήποτε δικαστηρίου, ως και

πάσαν διαιτητικήν τοιαύτην."

It is to be noted that the above definition is similar to that occurring in s.31 of the English Limitation Act 1939 “Action includes any proceedings in a court of law……”

The matter was judicially considered in Lamb and Sons v. Rider

(1948) 2 All E.R. 402 where Scott L.J. differentiated the right to sue from the right to issue execution. He said: [*525]

“The right to sue on a judgment has always been regarded as a matter quite distinct from the right to issue execution on it. The two conceptions have been the subject of different legislative treatment, and the definition of “action” in s. 31 of the limitation Act, 1939, has not the effect of merging the two together.”

Making a judgment a charge on immovable property pursuant to s.53 of Cap.6 is a method of execution as s.4 of the law expressly provides. A redent decision on the point to which I have been referred by counsel for defendants is Level Tachexcavs Ltd. v. Petrides (1981) 1 C.L.R. 152 . See also Vassiliadou v. Harikli, 1964 C.L.R. 274 Thus the execution of a judgment is not “any civil proceedings before any court of law” within the meaning of the word “action” in s.2 and. is entirely outside the ambit of the law. Since, in the instant case, plaintiff 2 had not renewed the memorandum after the lapse of the original two year period he did not qualify as a creditor who had to be notified by the D.L.O.

This conclusion makes unnecessary any

decision on the submission of this plaintiff respecting the mode of service. But even if such decision had been necessary I would have thought that the

notice was valid for it [*526] would not be right to allow plaintiff 2 to take advantage of his own. omission to furnish

the D.L.O. with his residential address. As submitted by counsel for defendants. he must be taken to have waived the advantage given to him by s.5 of the law. See in this respect Spencer

Bower’s The Law Relating to Estoppel by Representation pp.142 and. 143. The case of Improvement Board of Kambos v.Koudellari (1982) C.L.R. 760 on which plaintiff 2 relied does not help him in that there the

relevant provision of the Streets and Buildings Regulation Law regulating service of notice is entirely different from the one in s. 5 of Cap. 223.

The tests applicable to the grant of

interlocutory relief are well settled and were recently clarified in Odysseos v. Pieris Estates and Others (1981) 1 C.L.R. 55.I the light of those teats and for the reasons that I have giver. I

do not see how the plaintiffs can possibly have any “visible chance of success” in this action, Accordinly the interim order made on 28th July 1983 is hereby discharged. The costs of the application to be assessed by the Registrar and be paid by both plaintiffs.

Interim order discharged

Costs to be paid by plaintiffs.