The Custodian Order

The Custodian Order

Judge Emad Abdullah

2018-12-12 01:01:00




The custodian order is the order issued by court based on a request without notifying the second party. It is a temporary order issued by a judge in conditions provided by law but it shall not affect the origin of right.

The articles (151) and (152) of Civil Actions Code set forth the procedures of issuing the custodian order as the article (151)states that the person having the right to obtain a court order to make certain performance according to law, may in the case of expedience make a request to the competent court to issue such order through a petition that shall be submitted to the commissair in charge. Such petition shall be submitted in two copies , indicating the facts of the request and its grounds ,and shall be accompanied with substantiating documents. while the article (152) indicates that the judge commissiar shall make his order , whether to accept or reject the petition, and put it in writing on one of the petition's copies on the day following the date of its submission. An official copy of the order shall be given to the petitioner , the original shall be kept at the court's bureau. The judge has discretion according to the circumstances of the request and the documents are submitted to , in light of this the decision shall be made and a copy of order  shall be notified to  the party against whom the order was made to appeal against the order and appeal before the court of cassation if the grievance is approved because the custodian order covered by urgent execution by force of law.

Law doesn't specify the court competent in issuing the custodian order, but it only refers to the competent court and as it is known the dispute and issues of the ordinary judiciary specify the jurisdiction of custodian for the courts so that if the dispute is filed before the personal status court, this court will be competent in issuing the custodian order and the same for the other civil courts such as first instance and appeal courts.

Some may confuse between the summary judiciary and the custodian order to distinguish between them we would like to explain that the custodian judiciary issues an order on petition without the pleading or summoning the two parties while the summary judiciary makes a decision based on requesting the two parties to attend before the court and holding the pleading after notify the two parties. In meantime, the custodian judiciary makes the order without notify the litigant and the decision is made without his knowledge as well as  it issues an order. That means the custodian order is based on custodian judiciary and it is close to administrative acts in contrary to the summary judiciary. The examples of custodian order are the deeds and others. It is not challengeable before the court of cassation unless the appeal against it and the decision is made on the appeal, will be challengeable before the court of cassation unlike the summary judiciary whose decisions are challengeable before the court of cassation according to article(216)of procedures code. The important thing that the decision is issued by the summary judiciary , may not be changed in whole or in part or be abandoned by the same judge who issues that decision contrary to the custodian order can be abandoned or be amended by the judge himself. 




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