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Universul Juridic magazin

(Im)possibility of the court to invoke, ex officio, the impediment of existence of the co-ownership or common indivisible ownership over the real property subject to prosecution, in the procedure of forced execution approval

Regarding the situation in which the personal creditor of the debtor tends to the judicial execution of a real property being in the common ownership of the latter and of other persons (in co-ownership or common indivisible ownership), in relation to the provisions of art. 817 paragraphs (1) and (2) of the Code of civil procedure, several assumptions have to be taken into consideration: the creditor brings a claim of partition without subsequently requesting the approval of the judicial execution on immovable assets; the creditor brings a claim of partition and subsequently or even simultaneously he requests the approval of the judicial execution on the immovable asset which is under the common ownership of the debtor and of other persons; the creditor does not bring a claim of partition firstly, but rather he directly requests the approval of the judicial execution on immovable assets. In no case and anyhow, the creditor’s obligation to request the partition of the prosecuted real property cannot represent an impediment of its undertaking to request and obtain the approval of the forced execution over this real property of the debtor affected by the co-ownership or common indivisible ownership and subject to judicial execution.