Qualification by the enforcement court of the subject matter of the appeal to enforcement. Determination of the legal nature of the appeal to enforcement before the court on the basis of the grounds relied on: an appeal to standard enforcement and against
DREPT CIVIL ŞI PROCESUAL CIVIL
Abstract
It is true that, in the application lodged, the appellants requested the annulment of all forms of enforcement carried out in the enforcement file, but in the light of the enforcement document lodged in the file and the provisions of Article 22 of the Civil Procedure Code, the court was under an obligation to ask the appellants for oral or written explanations of the enforcement documents actually challenged and to submit these circumstances to the parties for discussion, without proceeding in the manner indicated.
Thus, even if the grounds relied on in support of the appeal relate to the enforcement itself and in relation to which the appeal to enforcement itself is untimely, as correctly held in the case, this does not exempt the court from clarifying the subject matter of the appeal to enforcement, which in this case was not limited only to the enforcement itself, but also concerned the act of enforcement consisting of the real estate summons of 12 March 2019, also mentioned in the statement of claim and attached to it. Furthermore, the fact that the ground of appeal concerning the creditor's right to seek enforcement may be legally raised only within 15 days of the communication of the first enforcement documents, being a ground of appeal in the strict sense of the term, which has been exceeded in this case, does not remove the duty of the enforcement court, before which the legality of this enforcement document is also challenged, to verify the relevance of such a defence also in relation to this single enforcement document, challenged by the debtors within the 15-day period provided for in Article 715 para. 2 of the Civil Procedure Code. (...)
In accordance with the provisions of Article 713 para. 3, final sentence of the Civil Procedure Code, the appellant may amend its initial application by adding new grounds of appeal if, in respect of the latter, the time limit for lodging an appeal to enforcement is respected, the text of the law invoked by the contestants - Article 204 of the Civil Procedure Code - not being applicable in this case.
