Gold-american-eagle Comments

Cass. Civil Sec. 1 No 8126 April 2, 2010 In memory of Franco Cipriani

Cass. Civil Sec. I No 8126 April 2, 2010 - Order in civil (proceedings) Opposition generally

Done right and

Following the application of the Tiroler Sparkasse Bank, the court of Arezzo, section Montevarchi a preliminary injunction on May 27, 2004 against M, G and Z, said Executive March 24, 2005.

the intimate resort on March 30, 2005 Montevarchi sub-office, asking that the decree be declared ineffective ai sensi dell’art. 188 disp. att. c.p.c., ritenendo che esso non sia stato notificato regolarmente, mettendoli nella posizione di non essere venuti a conoscenza del decreto medesimo. Il giudice adito, con decreto del 1° aprile 2005 sospende l’esecuzione del provvedimento monitorio, inaudita altera parte.

La Tiroler Sparkasse si costituisce in giudizio dimostrando le notifiche effettuate, con la conseguente produzione delle copie dei rispettivi avvisi di ricevimento, eccependo l’inammissibilità del ricorso proposto ai sensi dell’art. 188 disp. att. c.p.c., poiché applicabile solo nelle ipotesi di mancanza o inesistenza giuridica della notifica del decreto ingiuntivo. At the same time calls for the rejection of the application and the revocation of the decree had suspended the implementation of the provisional measure monitors.

then the process is interrupted by the death of either party, to be resumed April 26, 2006 with the establishment in court he heirs of deceased party. The court to grant the application with the applicant's decision dated May 19, 2007 declaring the injunction ineffective because of failure to comply with the terms of the Code of Civil Procedure 644, and considering the applicable art. 188 avail. att. Code, even if the notification occurred after the date provided by art. 644 cpc

against the ruling, Tiroler Sparkasse, offers special appeal to the Supreme Court, pursuant to art. 111, 7th paragraph of the Constitution are not resistant and are not active defensively.

Given that the application should be considered admissible in spite of the extraordinary form of the measure adopted by the judge (rather than judgment order as provided for in art. 188 avail. Att. CCP), and that it shows that they have content decisional, because it affects the individual right of the creditor and the debtor, and is not otherwise actionable under the same Article. 188 avail. att. cpc paragraph 3, and given that according to the constant orientation Court, the aforementioned Article. 188 avail. att. Code of Civil Procedure shall apply only in cases of lack or absence of legal notification of the order and not even in case of missing the deadline laid down in Article. 644 CCP, it is considered that action worthy of acceptance, as any irregularity in the notification, can be relied on, or with the opposition under Article. 645 cpc, or with the opposition late in art. 650 of the CPC, showing the illegality of the interim order for suspension of the injunction tailored by the court, and issued an ex parte , in conflict with the need of upon opposing parties imposed by that article. 188, paragraph 3 avail. att. cpc

Therefore, the sentence is invalid because it was delivered in a case not covered by the Code of ritual, even the sweeping decree issued ex parte by which the court stayed enforcement of the measure.

PQM

The Court accepts the appeal, and no court case under appeal the ruling because the case could not be brought, condemning the notice to pay the costs of the entire trial.