The Supreme Court of Justice (STJ) recently took a position on a controversial subject that is the subject of doubts and uncertainties: whether the appropriate appeal against decisions rendered with respect to execution and enforcement of judgment is an interlocutory appeal or an appeal.

Unlike in the systematic framework of the Code of Civil Procedure of 1973 (CPC/73),[1] the Code of Civil Procedure of 2015 (CPC/2015) introduced via its article 1,015 specific scenarios allowing for the filing of an interlocutory appeal, whose exhaustive interpretation is still under discussion in Brazil’s courts of appeal. The purpose of this text is to discuss the sole paragraph of the aforementioned article, which provides for the filing of an interlocutory appeal against interlocutory decisions rendered in the enforcement and liquidation of judgment phase, as well as in the execution and probate process.

With the provision for the free filing of an interlocutory appeal to challenge interlocutory decisions rendered in the execution and enforcement phase, and here in parallel with paragraph 3 of article 475-M[2] of the CPC/73, which provided that an interlocutory appeal would lie against decisions that resolved an objection to execution of judgment, except those objections that called for extinguishment, subject to appeal, the - CPC/2015 did not expressly determine what the appropriate appeal against a decision that resolves objections to execution of judgment, whether an interlocutory appeal or an appeal.

In addition to this question, the split understanding of the courts on the subject, possibly influenced by the provisions of the CPC/73, finally appears to have achieved a unified guideline from the STJ.

In the judgment on Special Appeal No. 1.698.344/MG, the written opinion of which was prepared by Justice Luis Felipe Salomão, the Fourth Panel of the STJ amended a decision handed down by the Minas Gerais Court of Appeals to hear an appeal filed against a decision that accepted an objection to execution of judgment. In this sense, it established that decisions that partially accept or reject the objection presented are subject to an interlocutory appeal, as the procedure for execution or enforcement of judgment shall continue.

According to the interpretative logic of the CPC/2015, read in the appellate decision published on August 1 of this year, article 1,015 expressly states that an interlocutory appeal lies against interlocutory decisions, while article 1,009 governs the submission of appeals against judgments. In this sense, it is important to question the nature of decisions rendered in the execution and enforcement of judgments. For judgments, the ruling emphasizes that in the current procedural system, there are two criteria set forth in paragraph 1 of article 203[3] of the CPC/2015: (i) content equivalent to one of the situations provided for in articles 485 or 489; and (ii) closure of the pre-trial phase, the trial phase, or execution phase. An interlocutory decision, in turn, is any pronouncement of a decision-making nature that does not fall under paragraph 1, as provided for in paragraph 2 of article 203 of the CPC/2015.

Thus, emphasizing that "if the execution is extinguished, it shall be a judgment, as per the aforementioned article 203, paragraph 1, final part; otherwise, it shall be an interlocutory decision, as per article 203, paragraph 2, CPC/2015,” the Fourth Panel concluded that “the execution shall be extinguished whenever the judgment debtor obtains, by any means, total suppression of the debt (article 924 CPC/2015), which shall occur with the recognition that there is no obligation to be demanded, whether because the debt has been discharged or because it is acknowledged that it does not exist or has been extinguished", as is thus subject to appeal.

Along these lines, the STJ settled an understanding that, for decisions that partially accept the objection or dismiss it, it shall be necessary to file an interlocutory appeal, as they do not entail extinguishment of the execution phase in progress and, therefore, are decisions of an interlocutory nature. In turn, decisions that extinguish the execution phase must be challenged by means of an appeal.

The STJ's understanding on the subject, based on the procedural logic of the CPC/2015, brings greater certainty to the filing of appeals against decisions rendered in execution proceedings and greatly contributes to avoiding an inadequate pathway for challenging decisions resulting in reduction of harm to parties.

[1]   Article 522 of the CPC/73 allowed the party to file an interlocutory appeal against any and all decisions likely to cause damage that is serious and difficult to repair, as well as in the event of denial of certiorari to an appeal and with respect to its effects.

[2]  “Article 475-M. The objection shall not have supersedeas effect, and the judge may assign such effect to the extent that its grounds are relevant and the continuation of the execution is manifestly liable to cause damage that is serious or difficult or uncertain to repair. Paragraph 3. Decision that resolve the objection are subject to appeal by means of an interlocutory appeal, except when it implies extinguishment of the execution, in which case an appeal shall lie."

[3]  “Article 203. The judge's pronouncements shall consist of judgments, interlocutory decisions, and bench orders. Paragraph 1. Subject to the express provisions of special procedures, a judgment is the pronouncement by which the judge, with a basis on articles 485 and 487, terminates the trial phase of the common proceeding, as well as extinguishes the execution."