25 Oct Order for the recovery of possession of property
Order for the recovery of possession of property
by George Coucounis
“If an issue arises during the execution, the Registrar applies to the Court for directions”
THE order for the eviction and surrender of possession of a property, like any other order requiring the execution of a certain act, must specify the time within which it must be executed. Failure to specify a time for compliance with it does not affect the validity of the order, but makes it ineffective in a way that cannot be enforced. In this case, it is necessary to determine the time in accordance with the procedure provided by the Rules and thereafter, personal service of the order must be made with the appropriate endorsement to the person addressed, who is asked to obey.
If the above procedure has been followed, the person to whose favour the order was issued is entitled to apply to the Court on ex parte application to obtain a writ of possession of the property. The Court will issue the writ after being satisfied that the eviction order with the appropriate endorsement was served personally to the person who is required to obey and that the service was made within the time specified in the order. In the event that the service of the order is not made within the specified time, it is necessary to obtain a supplementary order extending the time.
When the Court issues the writ of possession, it is passed to a bailiff of the Court for execution. The writ authorises the bailiff to seek recovery of possession of the property from the respondent, giving him reasonable notice to vacate the property and if he does not comply, the bailiff has the right to expel him from the property. If any issue arises during the execution, such as the actual possession of the property is held by another person instead of the respondent against whom the order was issued, then the Registrar of the Court submits an application to the Court for directions. The application is supported by an affidavit of the bailiff who sets out the facts. An issue regarding the execution of a writ of possession of a property was dealt with by the Rent Control Court in a judgment issued on 11.10.2021. The Court, dealing with the application of the Registrar, ordered its service to the owner, the statutory tenant and to his father, who was in actual possession of the property, as an interested party and heard all of them.
Examining the legal context of the application, the Court held that the present proceedings do not amount to the transfer of any new rights either to the tenant or to the interest party holding the possession of the property. Given that there is no order annulling or suspending the order, which allowed the execution of the writ of possession, the whole issue depends only on the manner of its execution and nothing more. Regarding the allegations made by the tenant and the interested party, the Court emphasized that they did not change the reality created by the final judgment and the interested party, who is the father of the tenant, did not show that he had a legal right to be in possession of the property. The crucial issue in this case is that only a few months ago a judgment by consent was issued with the free will and in the presence of both the tenant and his lawyer, without them saying in Court anything disputing his status as a statutory tenant. This indisputable fact prevents the tenant from alleging afterwards that he hadn’t understood the effectiveness and implications of the order for his eviction and the surrender of the property. Judicial decisions have validity and have consequences. The representations which a litigant makes through his lawyer to his opponent during the course of the trial, as the Court stated, may even lead to the creation of a promissory estoppel against him.
The Court added that nothing was placed before it to indicate that the execution of the writ of possession would result either in unjustified suppression or to serve other purposes beyond the proper satisfaction of the judgment. On the contrary, it is the non-enforcement of the judicial judgments that undermines their effectiveness, which is a matter of the highest public interest crucial for the administration of justice, since it affects the validity and effectiveness of Court proceedings, an issue that becomes more intense in cases such as the present, where the possession continues to be held without payment. The Court, taking into account the objective difficulties of the case, issued an order with specific directions to the bailiff of the Court to execute the writ of possession, giving reasonable time to the tenant and the interested party to find another house to move.