Facts
A. AG wants to enforce a claim of CHF 729,070.53 plus interest against C. by means of enforcement proceedings on the basis of a mortgage. Both C. and B. AG filed objections to the payment order. The Regional Court granted A. AG provisional enforcement for the amount of CHF 729,070.53 as well as for the mortgage right. Upon appeal by B. AG, the High Court reduced the amount for which the objection was lifted by CHF 250,000.- to CHF 479,050.53.
In its appeal to the Federal Supreme Court, A. AG demands that it be granted provisional enforcement as decided by the Regional Court. B. AG requests that the appeal be dismissed.
Considerations
The Federal Supreme Court states that the appellate instance must uphold the appeal in case of obvious defects in the writ of enforcement, even if the objection in question was not raised at first instance. The examination of whether a writ of enforcement exists is a question of law, which is carried out ex officio.
In the present case, B. AG complained in the cantonal appeal proceedings that the interaction of the documents was unclear and that the requirements for a composite writ of enforcement were not met. The High Court should have…