Recognition of inaction and decisions of a private bailiff as illegal

Dated May 14, 2025 No. 6001-24-00-6ap/1849 (2)

Plaintiff: A. S.

Defendant: private bailiff M. O. (hereinafter referred to as the ICO)

Subject of the dispute: recognition of inaction, actions and resolutions of the IEC as illegal.

Review on the cassation appeal of the plaintiff subject of the case:

As follows from the case documents, on February 14, 2024, A. S. executive note No. 02829-000018/432 was written on the withdrawal of 75,212 tenge in favor of the Association of owners of residential property "Altyn Shar 1".

On February 29, 2024, on the basis of the said Executive document, IIC no. 244/24-71-5558 initiated enforcement proceedings.

On March 13, 2024, resolutions were issued on the Prohibition of the debtor to perform certain actions, on obtaining and prohibiting information about the debtor's accounts in banks and the presence of funds in them, on the price and characteristics of property located in the bank, on money in organizations carrying out certain types of banking operations, as well as in insurance organizations.

In addition, resolutions were issued on the seizure of the debtor's vehicle and on the seizure of the debtor's real estate. These resolutions prohibited the plaintiff A. S. KIA vehicle and real estate in the form of an apartment in the city of A.

The plaintiff did not agree with the inaction, actions and decisions of the defendant, indicating that moral damage was caused to him, and went to court.

Judicial acts:

1st stage:

The Specialized Interdistrict Administrative Court of 2024

By the decision of April 29, the plaintiff was returned in the part of the claim of the A. S. ICO on the recognition of inaction for untimely transfer or omission of resolutions as illegal, the decision on the initiation of enforcement proceedings of February 29, 2024 as illegal, the actions on the issuance of resolutions as illegal, the production of moral damage.

By the decision of the court of justice of April 29, 2024, the claim for the recognition of decisions as illegal was partially satisfied.

According to the court decision, the decree of March 13, 2024 on the seizure of the debtor's real estate is recognized as illegal.

Appeal: the decision and ruling of the court of First Instance with the decision and ruling are left in force.

Cassation: judicial acts in this case have been upheld.

Conclusions: in the course of recognition of inaction of the claim for untimely transfer or omission of decisions as illegal, recognition of the decision on initiation of enforcement proceedings as of February 29, 2024 as illegal, recognition of actions to issue decisions as illegal, return of moral damage by the courts of lower instances, the range of circumstances relevant to the case has been correctly determined, the material norms of law have been applied correctly, the rules of procedural law have not been violated.

In accordance with paragraph 1 of Article 62 of the law of the Republic of Kazakhstan" on enforcement proceedings and the status of bailiffs " (hereinafter referred to as the law), the bailiff is obliged to seize the property of the debtor, including with the permission of the prosecutor, in order to ensure the execution of the enforcement document. At the same time, the bailiff has the right to simultaneously seize all property belonging to the debtor in the amount of the amount to be produced to ensure the execution of the enforcement document.

In order to ensure the fulfillment of the claimant's debt as a debtor, totaling 75,212 Tenge, the ICO has imposed a ban on the debtor's real estate.

At the same time, the judicial board agreed with the conclusion of local courts that the measure aimed at Enforcement does not meet the requirements of the manufacturer and the principle of reciprocity.

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