Calculation of the deadline for submitting an enforcement document for execution
B. appealed to the court with a complaint against the actions of a private bailiff (hereinafter referred to as the CSI) N., asked to declare illegal the decision of the CSI dated May 29, 2018 on the initiation of enforcement proceedings. The complaint is based on the fact that the enforcement proceedings were unlawfully initiated after the deadline for submitting the enforcement document for enforcement. By the decision of the District court No. 2 of Almaly district of Almaty dated January 21, 2019, B.'s complaint was denied. By the decision of the judicial Board for Civil Cases of the Almaty City Court dated April 4, 2019, the court's decision was overturned with a new decision on the satisfaction of the complaint. The Court of Appeal decided to declare illegal the actions of CHSI N. on the issuance of a resolution dated May 29, 2018 on the initiation of enforcement proceedings No. 354/18-75-3977 and ordered CHSI N. to eliminate the violation of the rights and legitimate interests of debtor B. The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the appellate instance on the following grounds.
It follows from the case file that the writ of execution, issued on June 26, 2012, was first submitted for enforcement on August 1, 2017. On August 1, 2017, enforcement proceedings were initiated by CHSI T., and by a resolution dated September 15, 2017, the writ of execution was returned to the recoverer without execution due to the debtor's lack of property to which it was possible to foreclose. Debtor B. appealed against the actions of CHSI T. on the initiation of enforcement proceedings, by the ruling of the Medeu District Court of Almaty on September 20, 2017, B.'s complaint. left without consideration on her application. On May 29, 2018, the Bank presented a writ of execution to CHSI N. to recover from B. in favor of this company the amount of loan debt in the amount of KZT 12,712,424 and the cost of paying the state duty in the amount of KZT 381,373. On the same day, enforcement proceedings were initiated. Applicant B. The complaint about the recognition of illegal actions of the bailiff to initiate enforcement proceedings was motivated by the fact that the writ of execution was submitted by the recoverer for execution after missing the three–year period provided for in subparagraph 1) of Article 11 of the Law "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law) and ended on June 26, 2015.
The Court of First instance, rejecting B.'s complaint, pointed out that when the writ of execution was accepted on May 29, 2018, the three–year deadline for submission was calculated from September 15, 2017, namely, from the date of the return of the writ of execution by bailiff T., who had previously carried out enforcement proceedings under the same enforcement document. In view of this, the court did not find illegality in the actions of the CSI when issuing the contested decision, pointing out that the deadline for submitting the writ of execution was interrupted in 2017, and in 2018 the writ of execution was submitted for execution within the time limit established by law.The court of appeal, overturning the court's decision and satisfying B.'s complaint, reasonably pointed out that the court of first instance violated the norms of substantive law – the law to be applied was not applied: subparagraph 1) of Article 11 of the Law. In accordance with this rule, enforcement documents: court orders and writ of execution issued on the basis of judicial acts may be submitted for enforcement within three years. According to paragraphs 1, 2 of Article 13 of the Law, a claimant who has missed the deadline for submitting an enforcement document has the right to apply to the court for restoration of the missed deadline. If the reasons for missing the deadline are recognized as valid, the deadline may be restored.
The deadline for submitting a writ of execution expired on June 26, 2015, after which it was not restored in accordance with the procedure established by article 13 of the Law. The Bank did not initiate this issue, which was not disputed by the participants in the process. According to subparagraph 3) of paragraph 1 of Article 38 of the Law, the expiration of the deadline for submitting an enforcement document for execution and the failure of the court to restore this period is an independent basis for refusing to initiate enforcement proceedings. Having established these circumstances, the court of appeal reasonably overturned the decision of the court of first instance and granted B.'s complaint, since the enforcement proceedings were initiated in violation of the above-mentioned requirements of the law. The board also agreed with the conclusions of the court of appeal on the fallacy of the arguments of the court of first instance on the interruption of the execution period in 2017, since by the time the enforcement proceedings were initiated in 2017, the deadline for submitting the enforcement document had already expired, it could not be interrupted. The Bank's references to the judicial acts of 2017 issued in response to B.'s complaint are untenable, since these judicial acts have no legal significance in this case. The list of legal grounds for interrupting the procedure for submitting an enforcement document for execution, provided for in paragraphs 1)-3 of paragraph 1 of Article 12 of the Law, is exhaustive. No such grounds have been established in this case. Thus, the board considered that the court of appeal had fully established the circumstances relevant to the case, the norms of substantive and procedural law had been applied correctly, and the circumstances of the case had been properly assessed, and therefore the board did not see any grounds for revoking the contested judicial act and granting the petition.
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