Session of 3 December 2008
Civil Cassation Appeal by Cassation No. 122/2008

(1,2) Appeal  “permissibility of appeal: judgments that are permissible to be appealed, and judgments not permissible to be appealed” – judgment “appealing a judgment by cassation: judgments which cannot be independently appealed by cassation” “reasoning of a judgment: defects in argumentation: error in the application of the law”.
 
(1) Judgments issued during the claim which do not settle the litigation before the first instance court – the rule – that it is not permissible to appeal the same except by including in such appeal the entire judgment that settles the litigation – the exception – interlocutory judgments, urgent judgments, judgments staying the claim and judgments executable by force – S. 156 – Procedures.
 
(2) The elementary judgment distributing the legacy and determining the Sharia-based shares of the heirs include two types of jurisprudence, one is directly appealable being executable by force, and the other is not appealable – the jurisprudence of the judgment appealed against by cassation that the entire appeal was not permissible, while it is permissible with regard to the part of judgment which was executable by force – error in the application of the law.
 
1- The meaning of Section 156 of the Procedures Law is that the legislature provides a general rule that no independent appeal is permissible of judgments issued during the litigation proceedings and before the final judgment settling such litigation, with the exception of interlocutory judgments, urgent judgments, judgments staying the claim and judgments issued on part of the subject-matter so long as they are subject to forcible execution.
 
2- The elementary judgment is considered of the type of judgments issued during the claim proceedings and before the issuance of the judgment settling the entire litigation. However, such judgment includes two types of judgments. One such type is directly appealable since it is forcibly executable. The other type is not directly appealable, as per the general rule. The judgment appealed against by cassation reveals that the appeal No (…) covered the jurisprudence of the elementary judgment relating to the depositing of the compensation for the expropriation of the (…) building, the registration of the (…) real estate, removal of attachment on the shares of (…) Company and distributing the same among the heirs. All the aforesaid are matters which are forcibly executable, and therefore permissibly appealable. However, as regards the appeal No (…), it is permissibly appealable in connection to the judgment of the elementary court on the registration of the (…) real estate, which is forcibly executable, as aforesaid, but not permissibly appealable as regards the judgment establishing the donation of the two properties, specified therein, to (…. and ….), and the establishment of the property No (…) to the children of (…), because such judgment was issued on a part of the claim by which litigation was not entirely terminated, and is not of the type of judgments exclusively exempted under Section 156 Procedures and permitted appealing them independently.
 
The judgment appealed against by cassation issued a judgment that the entire appeal was not permissible, while such appeal is permissible in connection to the part of the elementary judgment relating to the depositing of the compensation deserved for the expropriation of the (…) building, the registration of the (…) property, lifting the attachment on the shares of (…) Company and their distribution among the heirs. Such judgment is therefore defective for the error in the application of the law.

The Court  
Having reviewed the documents, heard the report read out by the Presiding Judge and heard the pleadings, and after due deliberation on the appeal by cassation which satisfied its formal requirements;

The facts, as revealed in the judgment appealed by cassation and other documents, may be summarised as follows. The Appellants of the appeal by cassation No 126/2008 approached the Legacies Circuit of the General Family Court with an application No (…) – legacies – general – for the distribution of the legacy of the deceased person (…) among his heirs according to the Sharia shares. The court issued a judgment which, first, declared the establishment of donation of the property specified under the fourth paragraph of the bequest, and located in Um Salal Mohamed, to the heir (…), and refrained from including it within the one third. Secondly, established the donation of the property specified under the second paragraph of the bequest, located at Um Salal Mohamed, to the heir (…) and her daughters, and refrained from including it in the one third. Fourthly, combined the property No (…) (…) to the legacy base and included it within the one third as bequest, and ordered the heir (…) to deposit with the court the compensation he had in consideration of the expropriation of such property, being the amount of 30,978,350 Riyals, and to address the Expropriation Directorate to deposit with the court the amount in consideration for adjudication, being 4,646,752 Riyals, for it to be distributed among the heirs according to their Sharia-based shares after deducting the bequeathed one third. Fifthly, the court rejected the appeal relating to the artificiality of the registration of property No (…), located at Al Jesra area, and registered in the names of the heirs who are the children of (…), and to register such property according to the beneficiary interest of those mentioned therein. Sixthly, to establish the waqf  of the house occupied by (…), located at Um Salal Mohamed and managed by the heir (…), and not be included within the bequeathed one third. Seventhly, to establish the waqf of the Um Salal Mohamed farm in favour of charity, according to the terms of the waqf donor as managed by the heir (…) and not be included in the bequeathed one third. Eighthly, establish the waqf of the property No (…) for the benefit of (…)’s children, and refraining from including it within the bequeathed one third. Ninthly, stay the claim by way of suspension in regard to the part relating to the (…) tower until the settlement of grievances presented by the rest of heirs to the High Committee for Grievances at the Expropriation Directorate. Tenthly, appoint the expert (…) to review the claim file for examining and auditing the accounts relating to rents, alms and other expenses since the death of the deceased relative to date, in connection to the property No (…) (…), located at Al Jesra, and identifying the person responsible for collecting and spending such expenses. The court fixed a session dated 28.10.2007 to consider the claim, provided that the expert should submit his report one week before the said session. The court also gave permission for review of the claim file. Eleventh, declare the lack of jurisdiction for the court to entertain the part of the claim relating to a land located in Dammam, Ahsaa and Al Muneera in Saudi Arabia, and the jurisdiction of the courts so to entertain. Twelfth, lifting the attachment on the shares registered in the name of the deceased relative (…) at the Qatari Insurance and Reinsurance Company, which were attached in favour of the legacies and minors affairs authorities. Thirteenth, to distribute the shares registered in the name of the deceased relative and detailed in the previous paragraph, being 104,915 shares in number, among the heirs according to the Sharia-based shares, as follows: 4371 shares to the heir (…), 4317 shares for the heir (…), 4875 shares each for the heirs (…), 4080 shares each for the heirs (…), 2040 shares each for the heirs (…), 2041 shares each to the heirs (…, …), 2437 shares each to the heirs (…, …, …). Fourteenth, returning the claim back for pleadings at the session dated 28.10.2007 in order to hear the remaining applications and the balance of the legacy, and for the clerk of the court to summon the absent litigants. Shaikh (…) and Shaikh (…) lodged an appeal against this judgment, which was registered as No 124/2007. Likewise, Shaikh (…) and Shaikh (…) lodged an appeal against the judgment, which was registered as No 129/2007. The court combined the two appeals and issued a judgment on 5.6.2008 that appealing was not permissible. The Appellants lodged against such judgment the current two appeals by cassation, which were presented before this Court, at the deliberation chamber, where the Court combined them and fixed a session for their consideration.

The Appellants contends against the judgment appealed against by cassation, inter alia, error in the application of the law, since it ruled that appeal was not possible because the appealed judgment was issued during the claim proceedings, without terminating the entire litigation, while the said judgment was forcibly executable and as such was permissibly appealable immediately upon its issuance. 

Section 156 of the Procedures Law reveals that the legislature prescribes a general rule to the effect that it is not permissible to independently appeal judgments issued during the litigation proceedings and before the final judgment that terminates such litigation, except as regards interlocutory judgments, urgent judgments, judgments staying the claim and judgments issued on part of the subject-matter so long as they are forcibly executable. 
Although the elementary judgment is considered among the type of judgments issued during the claim proceedings and before the issuance of the judgment settling the entire litigation, such judgment includes two types of judgments. One such type is directly appealable since it is forcibly executable. The other type is not directly appealable, as per the general rule. The judgment appealed against by cassation reveals that the appeal No (…) covered the jurisprudence of the elementary judgment relating to the depositing of the compensation for the expropriation of the (…) building, the registration of the (…) real estate, removal of attachment on the shares of (…) Company and distributing the same among the heirs. All the aforesaid are matters which are forcibly executable, and therefore permissibly appealable. However, as regards the appeal No 129/2007, it is permissibly appealable in connection to the judgment of the elementary court on the registration of the Al Jesra property, which is forcibly executable, as aforesaid, but not permissibly appealable as regards the judgment establishing the donation of the two properties, specified therein, to (…. and ….), and the establishment of the waqf relating to the property No (…) to the children of (…), because such judgment was issued on a part of the claim by which litigation was not entirely terminated, and is not of the type of judgments exclusively exempted under Section 156 Procedures and permitted appealing them independently.

The judgment appealed against by cassation issued a judgment that the entire appeal was not permissible, while such appeal is permissible in connection to the part of the elementary judgment relating to the depositing of the compensation deserved for the expropriation of the (…) building, the registration of the Al Jesra property, lifting the attachment on the shares of the Qatari Insurance and Reinsurance Company and their distribution among the heirs. Such judgment is therefore defective for the error in the application of the law. Accordingly, such judgment becomes defective by erring in the application of the law, which necessitates its partial cassation in this connection.