Where an executive warrant does not rest on an executive title, such as in the case of an executive warrant after a judicial sale by auction, then the provisions of Article 258 of the Code of Organisation and Civil Procedure, do not apply and the warrant can be executed at any time without the giving of prior notice to the debtor or the asking for Court authorisation.
This was held by the Court of Appeal presided by Hon. Judge Joseph Azzopardi, Hon. Judge Joseph R. Micallef and Hon. Judge Tonio Mallia in the case Bank of Valletta p.l.c vs. Saviour u Antoinette konjugi Micallef on the 18th of February 2020.
The Court heard the pleas of the appellants who had a warrant of eviction from immovable property issued against them on the 7th of April 2010 by Bank of Valletta p.l.c. After losing the case before the First Court, they appealed based on the fact that they claimed that the executants of the warrant should have asked the First Court whether they could execute the warrant ten years after it was issued.
It was explained that the spouses had two properties sold by a judical sale by auction in favour of the bank for a debt owed. The bank had bought both properties ‘animo compensandi’ and obtained a warrant of eviction against the spouses in 2010, however it executed the warrant on the 15th of October 2019. The spouses instituted proceedings to revoke the warrant on the basis of Article 258 which states that in the case of executive titles, after a certain period of time enforcement may only be made upon demand by application to the competent court.
Nonetheless, the Court rejected the spouses’ plea due to the fact that it was explained that Article 258 of the Code of Organisation and Civil Procedure speaks about the enforcement of executive titles such as judgements and contracts whereas in this case the bank had executed a warrant on the basis of a judicial sale by auction which is not an executive title. The Bank pleaded before the Court of Appeal that the spouses’ claim was vexatious and simply done to frustrate the process of justice.
It was stated that for the past ten years the spouses had resisted the execution of the warrant by instituting a number of judicial proceedings to circumvent their eviction from the properties. The Court of Appeal held that in order for a warrant to be challenged, an examination of the form of the warrant had to be done, in that if the warrant has been executed in a manner which is in accordance with law then it cannot be attacked. This is because the Court cannot enter into the merits of the case itself and therefore the warrant can only be revoked if it is issued by the wrong court or else is not drawn up in the form which is required by law.
However in this case, the warrant issued by the bank was legally correct in this regard. It was also held that in such cases the Court can only revoke the warrant if it is illegal, but cannot suspend its effects. The suspension of the effects of a warrant must be pleaded in accordance with Article 156 of the COCP. The Court held that the spouses necessarily knew and were legally notified about the judicial sale by auction, so much so that they started proceedings to suspend the sale and lost.
It was confirmed that the law does not require the creditor to inform the debtor on when they will be executing the warrant, and for this reason the warrant and its effects are legally justified. Therefore the Court rejected the appeal with costs against the spouses Micallef.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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