Recognition of the actions of the bailiff in issuing a decision on the initiation of enforcement proceedings as illegal and its cancellation

No. 6001-23-00-6ap/1435 dated October 23, 2023

Plaintiff: C.D.

Defendant: HSI

Interested person: K.A.

The subject of the dispute: the recognition of the action to issue a decision on the initiation of enforcement proceedings and its cancellation.

Review of the cassation appeal of the person concerned

PLOT: On October 13, 2022, on the basis of Writ of execution No. 3910 19-00-2/8480-1 dated March 30, 2020, enforcement proceedings were initiated to recover the amount owed from Ch.D. in favor of K.A.

The Central Bank also issued orders against the debtor prohibiting the debtor from performing certain actions, seizing property and requesting information about bank account numbers and seizing them if there are funds available.

Disagreeing with the decision of the CCI to initiate enforcement proceedings, the plaintiff appealed to the court, arguing that during the consideration of the civil case, K.A.'s interests were represented by lawyer S.A., who acted on the basis of a notarized power of attorney with the right to receive the awarded property and funds with all interest and accruals due.

According to the written receipt, S.A. received the amount of debt in the amount of 1,398,186 tenge for transfer to K.A. In addition, K.A. had not applied to the court for a writ of execution for more than two years, since the decision to collect the debt was made, which indicates that the debt was received from his representative. who died in October 2021.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision was overturned with a new decision on the satisfaction of the claim.

Cassation: the decision of the appellate instance is overturned, the decision of the court of first instance is upheld.

Conclusions: the court of first instance, guided by paragraph 1 of Article 38 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), refused to satisfy the claim, since, according to the court's conclusion, at the time of the initiation of enforcement proceedings, the grounds provided for by the specified norm of the Law, imposing on the Civil Protection Service the obligation to refuse the claimant to initiate enforcement proceedings, were absent, and a receipt submitted by the plaintiff without specifying the date with the text crossed out cannot serve as a basis for recognizing the actions of the Civil Protection Service to initiate enforcement proceedings as illegal.

At the same time, no other reliable evidence indicating the fulfillment of obligations by the person concerned, K.A., was presented to the court. Disagreeing with the above-mentioned conclusions of the court, the appellate judicial board overturned the court's decision and issued a new decision to satisfy the claim, substantiating its conclusions with the conclusion of the postmortem forensic examination dated March 02, 2023, according to which the handwritten text on receipt of funds was executed by S.A. Therefore, according to the conclusion of the appellate judicial board, the plaintiff fulfilled the judicial act and obligations It doesn't matter to K.A.

At the same time, the court of appeal pointed out that there were no illegal actions in the actions of the bailiff, since at the time of the initiation of enforcement proceedings he did not know and could not have known about the facts established by the court and the disputed relationship between the recoverer and the debtor.

The Judicial Board believes that the conclusions of the court of appeal on the cancellation of the court's decision on the above-mentioned grounds, which led to the appeal board making the opposite decision to satisfy the claim, are erroneous, based on a misinterpretation of substantive law, and the arguments of the cassation appeal deserve attention, due to the following.

Based on the meaning of paragraph 1 of Article 38 of the Law, the ICJ is obliged to issue a decision on the refusal to initiate enforcement proceedings only in the event of one of the above grounds, the list of which is exhaustive. It has been reliably established that at the time of the initiation of enforcement proceedings, the above grounds were absent.

Meanwhile, the appellate judicial board did not give a proper assessment of the grounds provided for by Law for the refusal of the CSI to initiate enforcement proceedings, but in fact established that the plaintiff's obligations to K.A. to repay the debt were fulfilled on the basis of a receipt and a postmortem examination report, while resolving the issue of fulfilling the requirements of the enforcement document by virtue of subparagraph 7) of paragraph 1 of Article 47 of the Law is the exclusive prerogative of the CSI at the stage of execution of enforcement proceedings.

In this regard, the judicial board agrees with the conclusions of the court of first instance that there were no violations in the defendant's actions when initiating enforcement proceedings, therefore, the defendant had no grounds for refusing to initiate enforcement proceedings. 

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