Recognition of decisions on seizure of property, assessment of Housing, and bidding as illegal

Dated 27.11.2023 No. 6001-23-00-6ap/1318

Plaintiff: A. N.

Defendant: IIC"N"

Subject of the dispute: initiation of enforcement proceedings, seizure of property, assessment of housing, recognition of decisions on bidding as illegal, cancellation of the protocol of the conclusion of the auction, invalidation of the conclusion of the assessment of real estate, revocation of the contract of sale and restoration of registration of property rights on the basis of a cassation complaint filed by the defendant

Subject of the case: by the absentee decision of the City Court of K. dated January 19, 2010, a loan debt of 11,840,348 tenge and a duty fee of 355,210 tenge were collected in favor of JSC "K" from A. N., the production was transferred to the property pledged by A. N. at the address: K., residential district of S., block 34, Section 9.  On March 19, 2010, he sent for execution a writ of execution on the recovery of arrears from pledged property of A. N.

In order to implement the court decision, the decision of the ICO dated November 24, 2015 initiated enforcement proceedings, the relevant enforcement actions were carried out, that is, the debtor's property was seized, appraisal was carried out, real estate was put up for auction, as a result of which the winner was recognized by the results of the electronic auction on April 14, 2016. On April 20, 2016, a purchase and sale agreement was concluded, and this real estate was sold to Ra. Then A. N. appealed to the court, challenging the actions of the ICO and the results of the auction, as a result of which the claim was dismissed by a court decision.

Judicial acts:

Stage 1: the claim was dismissed.

Appeal: Court decision amended.

The part of the claim that refused to recognize the resolution on initiating enforcement proceedings as illegal is canceled, in this part a new decision was made on satisfaction of the claim, and the private bailiff of the Regional Chamber of executors of the private Court 16 dated November 24, 2015 the resolution on initiating enforcement proceedings was declared illegal. The other part of the decision was left unchanged by the court.

Cassation: annul the decision of the judicial board and leave the decision of the court of First Instance unchanged.

Conclusion: the court of first instance concluded that at the time of the initiation of enforcement proceedings with the bailiff N. K., the requirements of the law were not violated and that his actions being challenged were committed in accordance with the requirements of the law. The Judicial Board of the appellate instance disagreed with the conclusions of the court of first instance, based on the fact that the disputed actions of the bailiff N. K. contradict the requirements of the law, because by an absentee decision of the court on January 19, 2010, two separate writ of execution on the collection of arrears and on the collection of collateral, that is, two writ of execution on the collection of one arrears amount, and the coexistence of two productions is contrary to the requirements of the law.

In addition, he substantiated that the deadline for submitting the writ of execution has expired. Such conclusions of the court of Appeal cannot be considered legitimate and justified. In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, decisions, sentences and other decisions of courts are binding on the entire territory of the Republic.

In accordance with the requirements of Paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5" on a court decision", the decision is legal when it is made in compliance with the norms of procedural law and in full compliance with the norms of material law subject to application to this legal relationship, or when applying the necessary grounds of the law governing a similar relationship, or arising from the general

According to the case documents, by an absentee decision of January 19, 2010, 11,840,348 tenge of loan debt and 355,210 tenge of duty were collected in favor of JSC A. N.-An "k", the production was transferred to the property pledged by A. N. at the address: K., residential district S., 34 quarters, Section 9.

In this regard, the court sent the writ of execution of the debtor A. N. on the recovery of the amount of debt from his property on May 19, 2010 in a timely manner by an outgoing letter No. 5116/6284. The conclusion of the court of Appeal that two writ of execution were issued in one case and two productions were carried out in parallel is unfounded, because by an absentee decision of the court that entered into legal force, the amount of debt to be collected by A. N. was transferred to the pledged property.

Since the execution of this court decision is the direct responsibility of the bailiff N. K., on November 24, 2015, he initiated the production of enforcement proceedings and took actions within his competence.

The conclusion of the court of Appeal that the three-year period for the execution of the writ of execution has expired is also unfounded, since the case documents include a decision of the private bailiff K. D. on the return of the writ of execution on the recovery of A. N.'s debt from his property dated June 14, 2013.

According to Paragraph 2 of Article 12 of the law (as amended in October 2015), after the break, the expiration of the term begins again, while the elapsed time before the break is not counted for the new term. The new period after the break is calculated from the date of its return to the recoverer, without the execution of the enforcement document in full or in part.

These circumstances were ignored by the court of Appeal. At the same time, the legality of the initiation of enforcement proceedings is determined by judicial acts adopted by the City Court of K. on August 25, 2016 at the request of A. N. to challenge the actions of a private bailiff A. K. and K. taking into account the decision of the City Court of November 5, 2018, A. N.'s application for the cancellation of the absentee decision on the recovery of the loan amount and recovery from the pledged property dated February 19, 2010 on newly discovered circumstances was given an appropriate legal assessment with the ruling on the refusal to satisfy.

In accordance with Article 5 of the code of criminal procedure, the task of administrative proceedings is a fair, impartial and timely resolution of administrative cases in order to effectively protect and restore the violated or disputed rights, freedoms and legitimate interests of individuals in public legal relations, the rights and legitimate interests of legal entities.

The judicial board considers that the conclusions of the court of First Instance on the refusal to satisfy the statement of claim of A. N. are accepted in accordance with the specific circumstances established in the case and on the principle of reasonable, reasonable and impartial. 

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