Procedural Objection by the Objecting Party to a Severable Judgment and Its Effect on the Rights of the Absent Convicted Party
Subject Areas : آیین دادرسی مدنیRsoul Fazelniyari 1 , Kazem Khosravi 2
1 - Student of Master’s Degree in Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.
2 - Assistant Professor of Criminal Law and Criminology, Department of Law, Faculty of Humanities, Mashhad Branch, Islamic Azad University, Mashhad, Iran.
Keywords: Default judgment, objection to a default judgment , severable judgment, decision of annulment, order of dismissal of the claim, effect of objection on the rights of the absent convicted party, respondent to the objection.,
Abstract :
In the Civil Procedure Law, there is a specific definition regarding the meaning of the terms “claim” and “judgment.” However, there is no clear definition concerning the meaning of the expressions “divisible and severable” and “indivisible and inseparable” with respect to a claim and a judgment, and this ambiguity has prevented a clear interpretation of the legislator’s ruling regarding divisible judgments and indivisible judgments. With respect to a severable judgment at the stage of objection to a default judgment (va‑khahi), it has been stipulated that such judgment shall not extend to the benefit of a person who has not filed the objection. The objecting party enjoys almost all the rights of the original defendant, including the right to raise the objections set forth in Article 84 of the Civil Procedure Code. If the basis of the plaintiff’s original claim has been a single document in which independent obligations are stipulated for each of the original defendants, and the original severable judgment is annulled for a reason such as the objecting party’s challenge to the authenticity of the document underlying the original claim, or the legal capacity of the original plaintiff to bring the action, the judgment issued after the objection proceedings (in this view) cannot be effective only with respect to the objecting party and the respondent to the objection. Rather, the judge’s knowledge requires that the issued decision should also have effect with respect to the person who did not file the objection.
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