Application for revision based on Article 509, para. 1 of the Civil Procedure Code. Pronouncement by the court hearing the case plus or extra petita. Exceeding the limits of the legal power and violation of the principle of availability

DREPT CIVIL ŞI PROCESUAL CIVIL

Abstract

In the present case, we do not find ourselves in the hypothesis of a ruling on something which was not the subject-matter of the claim, and there is no question of the court granting what the defendant did not request in the proceedings (in view of the fact that its counterclaim was dismissed as untimely) in relation to the specific subject-matter of the claim.

There was no need for a counterclaim to be made by the defendant sued, by which he sought a declaration that he was a tacitly accepting heir, since the verifications to which the court hearing the claim was required to make involved determining and settling the status of heir after the deceased, by the very fact that his succession had been opened, the first court being obliged to rule on the status of heir of the parties to the dispute, between whom the legal relationship subject to judicial review was being conducted. However, establishing the status of heir once the succession is opened after the death of a person requires per se jurisdictional checks on the acceptance of the succession in respect of all the legal successors of the deceased, which acceptance may be either express or tacit.