Acórdão nº 7956/15.7T8CBR-A.C1 de Tribunal da Relação de Coimbra, 23 de Janeiro de 2018
Magistrado Responsável: | ANT |
Data da Resolução: | 23 de Janeiro de 2018 |
Emissor: | Tribunal da Relação de Coimbra |
Acordam na Secção Cível (3.ª Secção), do Tribunal da Relação de Coimbra Proc.º n.º 7956/15.7T8CBR-A 1-Relatório 1.1.- A administradora do condomínio do prédio urbano sito na ... intentou, entre outros, contra a executada I... a presente execução, dando à mesma como titulo executivo a acta da assembleia de condóminos.
1.2.- Citada, veio a executada I..., através dos presentes embargos à execução, invocar a insuficiência do título executivo, uma vez que a acta dada à execução não preenche os requisitos fixados no art.º 6º do DL n.º 268/94, de 25/10.
Referindo de facto que a acta junta alude apenas às alegadas obrigações vencidas por parte do proprietário da fração, não sendo apta a demonstrar qual a contribuição efectivamente devida pela aqui embargante, como foram calculados os alegados montantes em dívida e qual o respectivo prazo de pagamento de cada uma das obrigações vencidas.
Apenas se retira da acta qua a fracção P tem um débito global de € 6.751,15.
Para além da acta, o exequente junta a conta corrente e o regulamento interno, mas estes dois últimos documentos não são título executivo. São, assim, meros documentos particulares, sem força executiva.
Também as quantias inscritas na conta corrente a título de despesas judiciais e o art.º 27 do regulamento interno não podem ser exigidas antes de se encontrarem vencidas e não são exigíveis.
Invoca ainda a prescrição das prestações de condomínio, de acordo com o disposto no art.º 310, n.º 1, al. g), do Código Civil.
Por último, a embargante aduz também que a responsabilidade da dívida, a existir, é do J..., já que a exequente sabe que este era o único dono da fracção “P”.
Pede, a final, a procedência dos embargos e a extinção da acção executiva.
1.3. - Notificado o exequente, o mesmo juntou o seu articulado de defesa, impugnando toda a materialidade aduzida pela executada/embargante, concluindo que ela é devedora da quantia peticionada, devendo prosseguir a execução.
1.4.- Foi agendada audiência prévia, tendo as partes solicitado o prazo de CINCO dias para poderem conversar e estabelecer um entendimento comum, o que não veio a ser possível. Nessa data foram ainda as partes notificadas de que este apenso dispunha já de todos os elementos necessários à prolatação de decisão final, determinando-se a abertura de conclusão para proferir despacho saneador sentença, caso não existisse acordo após termo do prazo de suspensão.
1.5. Elaborado o saneador referiu-se ser o Tribunal competente para conhecer a causa, em razão da nacionalidade, da matéria, da hierarquia e do território.
O processo não enferma de nulidade total.
As partes têm personalidade e capacidade judiciárias e também são legítimas e estão devidamente representadas.
Não existem outras nulidades ou questões prévias de que cumpra conhecer.
1.6. Foi proferida sentença onde se decidiu que o título apresentado pelo exequente não cabe na previsão da al. d) do nº 1 do art.º 703º do NCPC, pelo que, face ao disposto nessa norma, não pode valer como título executivo e, por consequência, julgar procedentes os presentes embargos à execução (e, por inerência, com levantamento da penhora sobre algum eventual bem dos executados) e, consequentemente, a execução extinta a execução, ficando as restantes questões prejudicadas; mais condenou a exequente em custas e fixou o valor da causa em € 8.243,57.
1.7. Inconformada com tal decisão dela recorreu o exequente terminando a sua motivação com as seguintes conclusões que se transcrevem: ...
1.8. – Feita as notificações a que alude o art.º 221.º do C.P.C., respondeu a executada terminando a sua motivação com as conclusões que se transcrevem: ...
2. Fundamentação O tribunal considerou provados, por documento ou por...
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