Dubai Court of Cassation (General Assembly), Resolution No. 2 of 2022, 31 October 2022
Article 1166(2) of the Civil Transactions Law, as amended, allows a co-owner who cannot sell his share to ask for the whole property to be sold. Such requests must be made in a substantive action, where they are granted, refused or declared inadmissible. The enforcement judge, whose jurisdiction under Article 70(1) of the 2018 Civil Procedure Regulation is to enforce the executory instrument and decide enforcement disputes, is bound by that instrument and cannot order a sale of the whole property that the judgment did not order. A co-owner who wants that remedy must include it in his claim from the outset or, if the ordered sale of his share cannot be carried out, bring a new action.
The President of the Court of Cassation asked the General Assembly whether paragraph 2 of Article 1166 of the Civil Transactions Law is wide enough to allow a request to sell the whole of a co-owned property to be made to the enforcement judge, and, if not, whether a new action is needed when the sale of a share proves impossible.
The Assembly noted that, under Article 1166 as amended, where co-owned property cannot be divided in kind, or division would cause harm or a large loss of value, any co-owner may sell his share to another co-owner or ask the judge to sell it, and if the share cannot be sold he may ask for the whole property to be sold and the price divided, subject to conditions (no greater harm to the others, and no repeat request within a year). The legislature intended these requests to be made in a substantive action decided by a judgment.
Article 70(1) of Cabinet Resolution No. 57 of 2018 on the Regulation of the Civil Procedure Law gives the enforcement judge exclusive power to enforce the executory instrument and to decide enforcement disputes on an urgent basis. He must keep to what the instrument provides; otherwise he would be enforcing a request on which no judgment was given. There is no room for interpretation where a text is clear (Article 1 of the Civil Transactions Law), and since a court may not award what was not requested, an enforcement judge may not order the enforcement of what no judgment ordered.
The Assembly concluded that Article 1166(2) does not allow the request to sell the whole property to be made to the enforcement judge; the co-owner must include it in his original claim, failing which he must file a new action if the sale of his share cannot be executed.
Partition and sale claims between co-owners of inherited or jointly bought property are common. A judgment ordering only the sale of a share cannot be converted at the enforcement stage into a sale of the whole; including the alternative request in the original claim avoids a second action. Decided under the 1985 Civil Transactions Law and the 2018 Civil Procedure Regulation.
| Articles 1 and 1166 of Federal Law No. 5 of 1985 (Civil Transactions Law), Article 1166 as amended — text of articles 1, 1166 Decided under this law; it has been replaced by Civil Transactions Law 2025. |
| Article 70(1) of Cabinet Resolution No. 57 of 2018 on the Regulation of the Civil Procedure Law Decided under this law; it has been replaced by Civil Procedure Code. |
“عدم اتساع الفقرة الثانية من المادة 1166 ليكون تقديم طلب بيع العين كلها لقاضى التنفيذ”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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