No order for the recovery of possession of a property can be set aside if there is no compliance with the order of the court
The recovery of possession of an immovable property is what a landlord seeks when a tenant fails to pay rent owed or mesne profit ordered to be paid during the period of stay of execution of an eviction order. Initiation of eviction proceedings is the first step in obtaining an eviction order and the second is the execution of the order, so that a writ of possession is issued in pursuance of the execution of the order against every person in possession to surrender the property to its owner.
An owner who succeeded in issuing an order for the recovery of possession, may serve the order within the time specified therein and if there is no compliance, the owner is entitled to apply by an ex parte application for the issuance of a writ of possession for the execution of the eviction order. Once the writ of possession is issued it is up to a registrar or bailiff to execute it.
Order 43A of the Civil Procedure Rules provides that where a judgment or court order for the recovery of any immovable property is sought to be enforced by a writ of possession, the writ may be issued by leave of the court obtained on an ex parte application by the plaintiff supported by an affidavit. Such leave shall not be given unless it is shown that all persons in possession of the whole or part of the property have received notice of the proceedings as may be considered sufficient to enable them to apply to the court to seek a remedy.
Possible unexpected events that precluded the tenant from complying do not legitimise them to apply for an order of the court to set aside the writ of possession or any other remedy. Such events cannot be considered to fulfil the conditions set by the regulation.
The Rent Control Court in a judgement issued in application E25/2021, dated February 16, considered the issue with reference to Order 43A. It emphasised that the issuance of a writ of possession is applied by an ex parte application. It is a common law and not in personam remedy against the respondent, but in rem, by which power is given to the registrar of the court to take specific actions to give free possession of the immovable property to its owner.
Moreover, it gives relevant warnings to any third parties affected for any reason by the issuance of the order, who have the right to apply to the court and request setting aside the writ of possession, under Order 48 rule 8(4). The reference in the said Order “relief or otherwise” does not amount to conferring any new rights on either the tenant or any other occupant of the disputed premises. The court therefore emphasised that for the writ to be set aside, the applicant must prove the execution of the order would either be futile or was issued unjustifiably in the first place.
The court, referring to the English textbook Woodfall’s Law on Landlord and Tenant, noted that the possibility to set aside a writ of possession is limited and concerns the following cases: (a) when the order on which the writ was based is annulled, or (b) when the writ has been obtained by fraud, or finally (c) when there is an abuse of process or oppression in the execution.
In this particular case, the court ruled that the above conditions were not met and did not agree with the tenant that the issuance of the writ lead to the finding that there was an abuse of the process or oppression of him. The court concluded that the execution of a well-issued court order does not amount to oppression against the one who must comply with it. On the contrary, it is the execution that completes in practice the judicial process. Consequently, the court dismissed the application of the tenant for the aforesaid reasons, as well as, due to the fact that his application did not even contain the correct procedural provisions.
George Coucounis is a lawyer practising in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]