March 2024

Interim Order of the Athens Court of First Instance on the Suspension of Surrender of Property after Auction

Recently, our client's request for the granting of a temporary injunction for the temporary suspension of the execution of a performance order of her auctioned property (938 CCC), which was granted by the auctioneers, was accepted by the order of the President of the Office of 29.03.2024. Indeed, the President in her order granting the application for a temporary injunction by our client provided the following brief but absolutely crucial reasoning: [...] The application for a temporary injunction is granted. Suspends the execution of the property delivery order of 28.09.2023, as it is probable that the second ground of appeal (on co-ownership) will be successful on a provisional basis until the hearing of the appeal in question and subject to the condition that it be heard at the hearing on 29.07.2024[...]'.

In the present case, that is to say, the Judge, before whom the said request for interim injunction was heard, presumed the merits of the ground of the opposition filed by our client to annul the disputed property return, by which it is alleged that the disputed auction is invalid due to unauthorized co-bidding in it by the respondent-overbidders. In particular, given that the determination of the conduct of the auction in question took place before 1.01.2022, when the new provision of Article 959 para. 4 of the Civil Code, which now allows for co-auction, namely 13.09.2021, the date of the relevant seizure report, with the result that the bidding in the auction in question is governed by the pre-existing provision of Article 959 par. 4 of the CCP, which expressly prohibited bidding by more than one bidder jointly.

As we stated in our relevant opposition: "According to Article 959 par. 4 of the Civil Procedure Code, according to the wording prior to the relevant amendment of this article (pursuant to Article 64 of Law 4842/2021), which is applicable in this case: "The electronic auction is open to bidders who have previously been certified in the electronic auction systems. It is not possible for more than one bidder to bid together'. The infringement of the above provision entails the absolute nullity of the procedural act, in this case the auction, pursuant to Article 159(1) of the Civil Procedure Code, according to which: "The violation of a provision regulating the procedure and in particular the type of a procedural act entails nullity, which the court shall declare null and void, 1) if compliance with the provision is expressly required by law under penalty of nullity [...]". Procedural nullity is thus provided for by law as a sanction in cases of infringement of the provisions governing the procedure and, in particular, the type of procedural act attempted (for example, by the party, a court official or a court), as is the case in particular in the field of enforcement - as in the present case'.