Minor sons settle in a disputed apartment and do not interfere with their stay, entry and exit to this address

Incorrect definition of the form and grounds of the statement of claim was the reason for the adoption of illegal rulings in a civil case. The plaintiffs M., K. and their minor sons D. the defendants appealed to A. and I. with a claim to settle in the apartment 16 of the house 48 on Bukharbay batyr street in Kyzylorda (hereinafter referred to as the disputed apartment) and not interfere with their residence, entry and exit to this address.  By the decision of the Kyzylorda City Court dated November 12, 2012, the appeals of the plaintiffs were satisfied. The Defendants A. I. is obliged not to prevent M., K. and their minor sons D. from living in the disputed apartment. In favor of M., A. and I. collected a state fee of 1,618 tenge. By the decision of the Appellate Judicial Board of the Kyzylorda Regional Court on civil and administrative cases dated December 27, 2012, the court decision was canceled. The civil case initiated by the claim of M., K. and their minor sons D. to oblige the defendants A. and I. to settle in the disputed apartment and not interfere with their residence, entry and exit in it is reduced from production. By the decision of the Cassation Judicial Board of the Kyzylorda Regional Court dated January 31, 2013, the decision of the Appellate Judicial Board was left unchanged. The plaintiffs, in their application to the supervisory Judicial Board of the Supreme Court, requested that the decisions of the appellate and Cassation judicial boards be annulled and the decision of the court of first instance be upheld.

Minor sons settle in a disputed apartment and do not interfere with their stay, entry and exit to this address

The supervisory judicial board heard the opinion of the plaintiff M. in the case in support of the application, the conclusion of the prosecutor I. that the decisions of the appellate and Cassation judicial boards are subject to cancellation and the decision of the court of first instance is subject to cancellation, examined the case documents and concluded that the disputed judicial acts are subject to cancellation on the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. According to the evidence collected in the case, the plaintiffs M. and K. were legally married since August 14, 1986, from which their son D. was born on August 09, 2002.  M. on the basis of the resolution of the akimat of Kyzylorda city dated May 23, 2006, in accordance with the purchase and sale agreement dated May 24, 2006, Kyzylorda purchased a disputed apartment on Bukharbay batyr street. The specified real estate is the common property of the plaintiffs. As it was established in the court, in accordance with the decision of the Kyzylorda City Court of April 4, 2012, the counterclaim of M. was satisfied, and the defendants A. it is possible to evict I. from the disputed apartment without providing other living quarters with family members, and to continue living in the disputed apartment with A.'s family members until the full recovery of 2,916,000 tenge received by M. as collateral.  To date, the plaintiffs remain homeless due to the fact that M. and K., together with their minor child, are not allowed into the disputed apartment, which is their property, located at the above address, by the defendants A. and I. The court of First Instance ruled that since the apartment being disputed was the property of M., It was subject to settlement with family members in the same apartment. The Appellate Judicial Board annulled the decision of the court of First Instance and concluded that the proceedings are subject to termination in accordance with the requirements of Paragraph 1 of Article 247 of the code of criminal procedure. This statement was also agreed by the Cassation Court board. However, such judicial acts of judicial boards do not meet the requirements of the law. This is due to the decision of the Kyzylorda City Court of April 4, 2012 by the appellate and Cassation judicial collegiums M. recognizing that the requirement to own an apartment together with family members was resolved, they did not pay attention to the violation of their rights to use and dispose of property in their personal possession.

This decision was made on the basis of claims for the recovery of double the amount of collateral and eviction from the disputed apartment. And in the case under consideration, the plaintiffs demanded settlement through the court due to the fact that the defendants prevented the use of the disputed apartment in the private ownership of M. and K. The supervisory judicial board comes to the conclusion that a dispute has arisen between the parties on other grounds, the form of which is different. In accordance with the requirements of Article 364 of the code of criminal procedure, incorrect definition and incorrect definition of the range of circumstances relevant to the case is the basis for canceling the court decision or changing it. The appellate and Cassation judicial boards of the regional court incorrectly determined the range of circumstances relevant for the correct resolution of the dispute, did not study the arguments of the plaintiffs, and allowed violation of the requirements of the procedural law when making a decision on the case. In this case, the decisions of the court of Appeal and cassation are canceled, and the decision of the court of first instance is subject to cancellation. In connection with the above grounds, the supervisory judicial board concluded that the decisions of the appellate and Cassation judicial boards of the Kyzylorda Regional Court are canceled and the decision of the Kyzylorda City Court is subject to cancellation. 

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