Execution proceedings must be discontinued if it becomes apparent during the proceedings that realization is ultimately not possible for legal or factual reasons. The debtor can also contest false factual allegations in the application for execution during the execution proceedings.
Jeannée Mikula & Partner Rechtsanwälte successfully represented a client before the Supreme Court (OGH) in an execution case (AZ: 3 Ob 95/23a). The starting point was the seizure of alleged assets of a debtor. In its application for execution, the enforcing creditor claimed that the debtor was the beneficial owner of a business share. When filing the application, the creditor relied on a statement made by the debtor’s alleged trustee in parallel proceedings. However, without submitting the minutes in full, the statement was only reproduced in fragments in the application for execution. In fact, execution was carried out on a non-existent property right.
In ordinary enforcement proceedings, the basis for the decision on an application for enforcement is, in addition to the enforcement title, the submissions of the enforcing creditor in the application for enforcement (3 Ob 147/16p mwN; RS0000029; RS0000031). Unless the law exceptionally provides for a duty of proof or certification, this submission is to be regarded as true (3 Ob 53/08b). The information in the application for execution is therefore to be assumed (RS0000029). Only if the non-existence of the claim is already evident from the application for execution or from the court files is the application to be dismissed (RS0084555).
In the execution proceedings, the alleged trustee and actual owner was questioned at the instigation of the debtor and the facts of the case were clarified. The execution court then discontinued the execution. It stated that the realization of the share was not possible for legal and factual reasons due to the debtor’s lack of ownership.
The creditor lodged an appeal against the discontinuation order. The second instance affirmed the creditor’s view and denied the existence of grounds for discontinuation. The question of whether the property right exists at all – in this case the beneficial ownership of a share – was also not to be resolved by the execution court.
The Supreme Court did not follow this legal opinion. The execution court had to examine the facts relevant for the (here requested) discontinuation of the execution pursuant to Section 39 para. 1 no. 8 EO ex officio. Execution was to be discontinued if it was established that the legal position of the debtor was different and the attached right did not exist.
As a result, it can be seen that execution is to be granted on the basis of the information in an application for execution. If this information is not correct, a debtor can bring about the cessation of execution by filing corresponding motions for evidence. Execution on non-existent property rights is not possible. What sounds obvious first had to be confirmed by the Supreme Court.