The range of cases in which relief can be granted is very limited, since the execution of the judgment is not one of the court's judicial functions. For this purpose, the Execution Office was established, and this is understandable. Therefore, only in cases where the accumulation of circumstances indicates that this proceeding is necessary for the implementation of the judgment, and taking into account the aforementioned factors, the court will be inclined to grant the relief."
- To this systemic consideration, a general procedural aspect should be added, which has recently been highlighted in a number of decisions by Justice Asher Grunis as well as in the decision of Justice Miriam Naor. According to this approach, even when the judge is faced with a specific request, which appears to be just, in relation to the parties before him, sometimes such a request should not be granted, because of its implications for the entire litigants.
I will suffice with bringing three examples from the rulings of the past two years.
- In one case (Civil Appeal Authority 10227/06 Moshe Bublil N. Adv. Haim Indig, [Published in Nevo], A decision was given on 17 Shevat 5767 (5 February 2007)), a claim was filed by way of an injunction to open, and the respondent petitioned to cancel the incentive to open, and alternatively to transfer it to the track of a regular action, instead of the respondent filing a counter-affidavit on the merits of the matter. Justice Grunis explains what malfunction was caused as a result of this, and how it affects the entire judicial system, while citing another example from the field of procedure (paragraph 6 of the decision):
"Let's imagine that a claim is filed in a summary proceeding. The defendant does not file a motion for leave to defend but rather files a motion to delete the title "in a summary proceeding." Such a move is not enough for the defendant. If the motion to delete the title is rejected, the defendant may find himself with his hands on his head, since he did not file a request for leave to defend on time (see, for example, Civil Appeal 465/66 Gelber v. Turner, IsrSC 20(4) 772). In order to prevent this, the request to delete a title is accompanied by another request - to extend the date for submitting the request for permission to defend until after the deletion request is decided. Such a move is self-evident, when examined from the defendant's point of view. If he succeeds in the request to delete the title, the proceeding will turn from a claim in a summary proceeding to a claim in a regular proceeding. Needless to say, this option is preferable from the defendant's point of view (see: A. Goren, Issues in Civil Procedure (Eighth Edition, 2005), pp. 373-374). He can then file a statement of defense, without having to support his claims with an affidavit. If his request to delete the title is rejected, he can petition, after the rejection, for permission to defend himself. If we examine this option from the perspective of overall procedural efficiency, i.e., from the perspective of all the litigants knocking on the doors of the court, it is clear that the said option is ineffective. In other words, it will be possible to make more efficient use of judicial time, which is the most valuable resource of the judicial system, if it is possible to handle both requests at the same time, one to delete a title and the other to grant permission to defend. Had it not been for an extension of the deadline for filing an application for leave to defend, the defendant would have been forced to file both the motion to delete the title and the motion for permission to defend at the same time (it does not matter whether the motions were filed as two separate motions in writing or in the framework of a single application in which alternative remedies are provided). One hearing of the two motions would have saved judicial time. It was possible to discuss and decide on the request to delete the title first. The rejection of the application on the site would have made it possible to discuss it in the context of the request for permission to defend. When the two applications are before the court (or the Registrar) in the same hearing, it is even possible to offer different proposals and creative ideas to the parties. In this way, the court can try to promote a comprehensive compromise. At the very least, he can offer, in an appropriate case, that the defendant retract the request for deletion, while the plaintiff agrees to grant permission to defend. One thing is clear, from an administrative-procedural standpoint, it is preferable that the two applications be presented to the court at the same time and at the same hearing."