Acórdão nº 3539/04 de Court of Appeal of Coimbra (Portugal), 07 de Dezembro de 2004 (caso NULL)
Magistrado Responsável | REGINA ROSA |
Data da Resolução | 07 de Dezembro de 2004 |
Emissor | Court of Appeal of Coimbra (Portugal) |
ACORDAM NO TRIBUNAL DA RELAÇÃO DE COIMBRA I - RELATÓRIO I.1- Nos autos de execução comum instaurados por «A...» contra «B...», veio a exequente agravar do despacho que indeferiu liminarmente o requerimento executivo.
Conclui assim a sua peça alegatória: 1- As normas que serviram de fundamento para o indeferimento liminar do requerimento executivo (art.662º/2 e 378º/2,C.P.C.) não têm aplicação no caso subjudice; 2- Nos termos do art.21º/1 do DL 38/03, essas normas e ainda a norma do art.47º/5, não são aplicáveis aos processos instaurados antes de 15 de Setembro de 2003; 3- A sentença em execução foi confirmada por acórdão do STJ de 26.5.00, já transitado em julgado; 4- A sentença em execução não está sujeita ao regime do novo nº2 do art.661º, por ser um processo anterior áquela data; 5- Ante a inaplicabilidade dessa norma tornam-se inaplicáveis os arts.378º/2 e 47º/5,C.P.C.; 6- A execução deveria assim prosseguir ordenando-se a imediata penhora dos bens do executado, discutindo-se eventual, mas sempre posteriormente, a liquidação do montante exequendo.
I.2- A executada foi citada para os termos da causa e do recurso, nada tendo dito.
Foi mantido o despacho agravado.
Colhidos os vistos, cumpre decidir.
II.2 - de direito A questão que se coloca neste recurso está desde logo em saber se é de aplicar o novo regime da acção executiva operado pelo DL 38/03, de 8.3 à pretensão trazida a juízo – executar a sentença proferida na acção declarativa.
No despacho recorrido optou-se pela aplicação do regime novo, e nessa medida entendeu-se que a sentença genérica só poderia ser executada após o incidente destinado à liquidação, nos termos dos arts.378º a 380º/C.P.C. (na redacção...
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