APPEAL against the decision to cancel the resolution on foreclosure on property, on the seizure of property, on the transfer of seized property for sale
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To the Appeal Board for Civil Cases of the Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
Plaintiff: E. J.
IIN ………………
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 78 58; +7 708 978 50 85.
Defendant: Private bailiff of Almaty, Sarybekov Dzhanibek Tursynbayevich.
050000, Republic of Kazakhstan, Almaty, Karasai Batyr str., 152/1 , Block C,5th floor
Phone: +77073313887.
dzhanibek2014@gmail.com
The recoverer: R.A.
THE APPEAL
on the decision of the Specialized Interdistrict Administrative Court of Almaty dated 04/12/2023
On April 12, 2023, the Specialized Interdistrict Administrative Court of Almaty, composed of the presiding Judge Keldybaev G.P., considered the administrative case No. 7594-23-00-4/929 on the administrative claim of E.Zh. to CHSI Sarybekov Janibek Tursynbayevich on the cancellation of the decision on foreclosure on property, on the seizure of property, on the transfer of seized property for sale dated February 24, 2023, to oblige to remove the encumbrance on the seizure of immovable property, to oblige to eliminate in full the violations of rights committed by the court, it was decided to satisfy the administrative claim challenging E.Zh. to the private bailiff of the executive district of Almaty, Sarybekov Janibek Tursynbayevich, on the cancellation of the decision on foreclosure on property, on the seizure of property, on the transfer of seized property for sale dated February 24, 2023; on the obligation to remove the encumbrance on the seizure of immovable property; the obligation to eliminate in full the violations of rights - to refuse.
We consider the decision of the court of first instance to be unlawful and unjustified due to the following circumstances:
When making the decision, the court incorrectly determined and clarified the range of circumstances relevant to the case.
The court of first instance violated the requirements of art. 154 of the CPC RK, that is, the court's decision must be lawful and justified. A court decision is recognized as legitimate if it is made in compliance with all the requirements of the law and on the basis of the law. A decision is considered justified if it is made on the basis of a comprehensive and objective examination of the evidence presented to the court at a court hearing.
We believe that the court of first instance considered and took into account only the arguments of the defendant.
The plaintiff owns the following property:
- 702 Zhaugash Batyr str., Koktogan village, Karasai district, Almaty region;
- Almaty, Miras district, house 157/4 sq.42;
- Almaty, Rozybakieva St., 237 sq.86.
-Infiniti brand vehicle with GRNZ 707 AAT 02 year of manufacture, 2019.
According to the report on the valuation of real estate No.A-2022-190/3 dated 12/14/2022, owned by Ermenova Zhanat, located at 237 Rozybakieva St., 86 sq.m., Almaty, it amounts to 93,229,655 tenge.
According to the report on the valuation of movable property, an Infiniti brand vehicle with GRNZ 707 AAT 02 / 2019 No. 3-2023 dated 01/17/2023 owned by Ermenova Zhanat amounts to 23,673,000 tenge. Which is twice the amount owed.
On 07.01.2023, we applied to the CSI for the removal of real estate from arrest, but the CSI refused our application. We believe that CHSI's actions are illegal, as CHSI calls us to his office and verbally informs us that he will lift the arrests from real estate. However, he does not do all this, thereby deceiving us and misleading us.
It should be noted that the CSI did not provide a written response, which is a violation of the norms of the CPC of the Republic of Kazakhstan.
The administrative act must be lawful and justified. An administrative act should be clear to understand, ensure uniform application, and comprehensively define the circle of persons to whom it applies.
According to Article 3 of the Law on Enforcement Proceedings and the Status of Bailiffs of April 2, 2010, enforcement proceedings are conducted on the principles of: legality; timeliness and transparency of enforcement actions and the application of enforcement measures; respect for human honor and dignity; inviolability of the minimum property necessary for the existence of the debtor and his family members; proportionality of the volume of the recoverer's claims and enforcement measures.
By virtue of Article 55 of the Law on Enforcement Proceedings and the Status of Bailiffs of April 2, 2010, the debtor's property is subject to foreclosure in the amount and volume necessary for the execution of the enforcement document, taking into account the costs of execution and the costs of paying for the activities of a private bailiff.
According to Article 62 of the Law on Enforcement Proceedings and the Status of Bailiffs, in order to ensure the execution of the enforcement document, the bailiff is obliged to seize the debtor's property, including in cases provided for by law, with the approval of the prosecutor. In this case, the bailiff, in order to ensure the execution of the enforcement document, has the right to simultaneously seize all property belonging to the debtor, commensurate with the amount to be recovered.
The CSI deliberately does not remove the encumbrance imposed on the immovable property of an apartment located at 157/4 sq.42 Miras district, Almaty, a land plot located at 702 Zhaugash Batyr Street, Almaty region, Karasai district, Koktogan village. Although the cost of an Infiniti vehicle with GRNZ 707 AAT 02 year of manufacture 2019 exceeds the amount owed by two times.
Thus, there is a direct interest in the outcome of the enforcement proceedings in the actions of the CSI, and we doubt the impartiality of the CSI.
According to Article 54 of the Law "On Enforcement Proceedings and the Status of Bailiffs", a bailiff, an assistant to a private bailiff, an interpreter, a specialist cannot participate in enforcement proceedings and are subject to recusal if they are personally, directly or indirectly interested in the outcome of enforcement proceedings or there are other circumstances, in particular, family relations with the parties, with by their representatives, raising doubts about their impartiality.
If there are circumstances for recusal, the persons specified in paragraph 1 of this article are obliged to recuse themselves. The challenge must be motivated and stated in writing.
before the beginning of the execution of executive actions. A challenge in the course of execution is allowed if there is a reason for it and it became known after the beginning of the execution of enforcement actions.
In case of recognition of the illegality of the burdensome administrative act, which has already been executed or is being executed at the time of the decision, the court has the right to force the defendant to cancel the execution and require actions to return the plaintiff to its original position within the time period specified in the decision.
In accordance with Article 8 of the CPC of the Republic of Kazakhstan, when considering an administrative case, an administrative body, an official and a court are obliged, while maintaining objectivity and impartiality, to provide each of the participants in the administrative case with equal opportunities and conditions for exercising their rights to a comprehensive and complete investigation of the circumstances of the administrative case.
According to Article 16 of the CPC of the Republic of Kazakhstan, administrative proceedings are conducted on the basis of the active role of the court. The court, not limited to explanations, statements, petitions of participants in the administrative process, arguments, evidence and other materials of the administrative case presented by them, comprehensively, fully and objectively examines all the factual circumstances relevant for the proper resolution of the administrative case.
168 of the CPC of the Republic of Kazakhstan, the procedure for appeal and the administrative proceedings on appeal in the court of appeal are determined by the rules of the Civil Procedure Code of the Republic of Kazakhstan, unless otherwise provided by this article.
Court decisions that have not entered into legal force may be appealed by participants in the administrative process on appeal by filing an appeal within two months from the date of the final decision. The appeal petition of the prosecutor may be filed within two months from the date of the final decision in administrative cases provided for in Article 31 of this Code.
In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
Based on the above and guided by Articles 401 and 427 of the CPC RK, Article 168 of the CPC RK,
I ask the Court:
The decision of the Specialized Interdistrict Administrative Court of Almaty dated 04/12/2023-to cancel;
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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