Recognition of illegal actions to demolish the eastern wall of the building
No. 6001-23-00-6ap/1162 dated September 21, 2023
Plaintiff: J.J.
Defendant: HSI
Interested party: "K" LLP
The subject of the dispute is the recognition of illegal actions to demolish the southeastern wall of the cafe-store by 2.5 meters to the north. Review of the cassation appeal of the person concerned
PLOT: By the decision of the K. District Court of the A. region of December 22, 2021
It was decided: to claim from the illegal possession of Zh.Zh. in favor of K.Zh. a land plot with an area of 0.0059 hectares; to oblige Zh.Zh. to remove obstacles to the use of the land plot by demolishing unauthorized structures with a total area of 59 square meters located on the land plot of K.Zh. On July 8, 2022, the bailiff initiated enforcement proceedings and took measures to their execution.
By the definition of the SMAS of the Moscow region dated August 8, 2022, a mediation agreement was approved between the parties to the dispute, according to which the plaintiff is obliged to voluntarily vacate the unauthorized building he occupies, indicated in the executive document by August 27, 2022, as well as demolish the unauthorized building and vacate the territory belonging to K.Zh., by September 1, 2022.
The defendant has committed to provide the plaintiff with a deadline of September 1, 2022 for the voluntary execution of the enforcement document. The plaintiff appealed to the court, arguing that the defendant, exceeding his official authority, demolished part of the wall of the cafe - store by 2.5 meters to the south, despite the fact that the wall of the premises was not specified in the court decision.
Judicial acts:
1st instance: the claim was denied.
Appeal:. The decision of the court of first instance was overturned, and a new decision was made to satisfy the claim. It was decided to recognize as illegal the actions of the CSU to demolish the southeastern wall of the cafe-store by 2.5 meters to the north.
Cassation: the decision of the judicial board is upheld.
Conclusions: by resolving the dispute and rejecting the claim, the court of first instance concluded that there had been no violations of the requirements of current legislation and the rights of the plaintiff as a party to enforcement proceedings (the debtor). The Court of Appeal did not agree with the above conclusions of the court of first instance and, making a new decision on the satisfaction of the claim in the case, pointed out that the contested actions of the CSI were illegal and violated the rights and interests of the plaintiff.
The judicial Board agrees with the conclusions of the court of appeal, and finds the arguments of the complaint untenable due to the following.
By virtue of paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and in accordance with Article 21 of the CPC, part two of Article 18 of the CPC, judicial acts that have entered into force are binding on all state bodies and their officials, individuals or legal entities to whom these judicial acts relate. By virtue of paragraph 3 of Article 126 of the Law, enforcement proceedings must be conducted on the principles of legality and the bailiff is obliged to prevent infringement of the rights and legitimate interests of individuals and legal entities in his activities.
It was established that the bailiff, in order to execute the judicial act on the demolition of the unauthorized annex, initiated enforcement proceedings and took appropriate measures for execution. During the execution of the CSI, in addition to the five 59-square-meter facilities specified in the court decision, part of the wall of the cafe-store was demolished by 2.5 meters to the south, despite the fact that this wall of the premises was not specified in the court decision.
Attention is drawn to the fact that there is a decision that entered into force on December 22, 2021, from which it follows that an unauthorized buildings were measured by a specialist with the participation of court 10 and the parties, while the presence of unauthorized buildings with a total area of 59 square meters above a part of the land plot of K.J., with an area of 0.0059 hectares, was confirmed, that is, they are subject to demolition buildings above a part of the land plot, with an area of 0.0059 hectares, which belongs to K.Zh. The circumstances established in the case indicate that the CSI went beyond the requirements of the writ of execution and demolished part of the wall of the cafe-shop premises by 2.5 meters to the south, despite the fact that the wall of the premises was not specified in the court decision.
In the aggregate of the above circumstances of the case, the judicial board considers that the court of appeal correctly resolved the case and reasonably adjusted the judicial act of the court of first instance, guided by the principles of legality, fairness and reasonableness.
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