Restoration of the deadline for the submission of a writ of execution
Article 11 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law) specifies the time limits within which enforcement documents may be submitted for enforcement.
Thus, in accordance with subparagraph 1 of paragraph 1 of Article 11 of the Law, executive documents issued on the basis of judicial acts may be submitted for compulsory execution within three years.
Article 38 of the Law stipulates that the bailiff, within three working days from the date of receipt of the enforcement document, issues a decision to refuse to initiate enforcement proceedings if: - the deadline for submitting the enforcement document for execution has expired and has not been restored by the court.
Thus, the omission of the deadline for the submission of the enforcement document for execution is the basis for the issuance by the bailiff in accordance with article 38 of the Law of the decision on the return of the enforcement document. Therefore, there is a need to restore it.
According to article 13 of the Law, a claimant who has missed the deadline for submitting a writ of execution has the right to apply to the court that issued the judicial act or to the court at the place of execution with an application for reinstatement of the missed deadline. If the court recognizes the reasons for missing the deadline for submitting a writ of execution or a court order as valid, the deadline may be restored.
The only entity having the right to apply for the restoration of the deadline for the submission of a writ of execution is the recoverer.
The application must be submitted to the court that reviewed the case. Thus, according to the Regulatory Decree of the Supreme Court "On certain issues of the execution of judicial acts in civil cases", in accordance with Article 126 of the CPC and Article 13 of the Law on Enforcement Proceedings, the court restores the deadline for submitting an enforcement document for execution if this deadline is missed for valid reasons (illness, being on a business trip, etc.).
Article 126 of the CPC provides for the extension and restoration of procedural time limits. Taking into account this decision, it follows that the application for the restoration of the time limit for the presentation of a writ of execution is considered by the court according to the rules of Article 126 of the CPC.
The court restored the deadline for submitting a writ of execution.
So, S. applied to the Martuk district Court of the Aktobe region with a request to restore the missed deadline for the presentation of the enforcement document.
The court found that, according to the court order of July 04, 2013, with B. in favor of S. alimony was collected for the maintenance of their son B., born in 2008, monthly in the amount of one quarter of all types of earnings and (or) other income of the debtor, starting from July 03, 2013 and until the child reaches adulthood.
From S.'s explanations, it was established that she did not apply for the court order to be executed, since from July 04, 2013 to October 2016, she lived together with the debtor.
These arguments of the applicant about missing the deadline for filing a court order for execution were recognized by the court as valid, and since they contribute to ensuring the protection of the rights of a minor, by a court ruling dated December 09, 2016, the statement of S. satisfied.
The court refused to reinstate, due to the fact that the failure to submit a writ of execution is a procedural omission by the applicant.
JSC "Bank" applied to the court to restore the deadline for submitting a writ of execution. By the ruling of the Petropavlovsk City Court No. 2 dated November 07, 2016, the application was dismissed.
During the consideration of the case, it was established that the bailiff was conducting enforcement proceedings dated May 07, 2012 to recover from K. in favor of Bank 2 JSC the amount of 6,888,631 tenge, initiated on the basis of a writ of execution dated May 04, 2012. On January 25, 2013, the bailiff issued a resolution on the return of the enforcement document due to the impossibility of recovery. On January 29, 2013, the enforcement document was sent to the claimant. On January 31, 2013, JSC "Bank 2" was received.
It was established that the recoverer missed the deadline for submitting the writ of execution, since after the return of the writ of execution, namely on January 31, 2013, the recoverer did not submit it again for execution.
The deadline for the enforcement of this executive document expired in January 2016. The reference of the claimant's representative to the fact that some of the employees of the former loan repayment department of Bank 2 JSC, with the exception of those dismissed, were transferred to the Audit and Recovery Department of the Petropavlovsk branch of Bank JSC, and that some documents under the jurisdiction of the dismissed employees were not transferred to the combined department, were not taken into account by the court, because the bank had enough time to determine the location of the writ of execution. Thus, the court did not recognize the specified reason as valid.
The application was returned to the applicant due to its premature presentation. Ch. Applied to the court for the restoration of the missed deadline for the presentation of the enforcement document for execution, pointing out that earlier in the proceedings of a private bailiff there was a writ of execution issued by the decision of the Aktau city Court No. 2 dated June 08, 2012 on recovery from Ch. in favor of it amounts to 1,827,045 tenge. By the resolution of the private bailiff dated December 20, 2012, the enforcement proceedings in this enforcement proceeding were terminated.
However, it was subsequently established that the debtor had not actually fulfilled his obligations under the said court decision and had not actually paid the amount in her favor. The three-year deadline set by law for the submission of a writ of execution has been missed due to repeated court proceedings.
By the ruling of the court No. 2 of Aktau, Mangystau region, dated August 18, 2016, the application was returned to Ch. with all attached documents, in accordance with subparagraph 1 of part 1 of Article 152 of the CPC. Returning the application, the court motivated the ruling by the fact that the applicant must first submit a writ of execution for enforcement, in case of refusal to accept the writ of execution or initiation of enforcement proceedings due to missing the deadline for submission for execution, the applicant has the right to subsequently apply to the court with the above-mentioned application.
In this case, we believe that the court should have issued a ruling on the refusal or satisfaction of the application for reinstatement, since there were no grounds for a refund in accordance with Article 152 of the CPC.
The restoration of the deadline was refused, due to the fact that the applicant did not provide evidence of the validity of the reason for missing the deadline.
The applicant, E., applied to the court for the restoration of the time limit for the presentation of a writ of execution, arguing that the court's decision of October 04, 1991 had recovered alimony from E. in her favor for the maintenance of a minor child born on February 03, 1991, but the court's decision had not yet been executed. Requests to restore the deadline for the presentation of the enforcement document.
By the ruling of the Sozak District Court of South Kazakhstan Region dated December 14, 2016, the application was denied. The ruling is motivated by the fact that on January 30, 2009, the Sozak District Court issued a writ of execution.
The applicant, in accordance with Articles 72-73 of the CPC, did not provide evidence of the validity of the reasons for missing the deadline for submitting a writ of execution.
Appeal against the court ruling on the restoration of procedural time limits.
Thus, in accordance with part 5 of Article 128 of the CPC (the old version), it was stipulated that a private complaint or protest could be filed against the court's ruling on the refusal to extend and restore the missed procedural period.
The current CPC, parts 6.7 of Article 126 provide that the court's ruling on the refusal to extend the restoration of the missed procedural period may be appealed and challenged on appeal.
The court's ruling on the extension or restoration of the procedural period is not subject to appeal or appeal.
When resolving the issue of restoring the deadline for submitting an enforcement document for execution, the court must establish the following circumstances:
1) the deadline for submitting the enforcement document has indeed been missed;
2) the reasons for missing the deadline are valid.
The determination of whether the reasons indicated in the claimant's petition for missing the deadline for submitting a writ of execution are valid is at the discretion of the court.
When resolving the said petition, the court takes into account the specific circumstances of the case and the evidence provided by the applicant.
The applicant must prove the impossibility of performing actions to submit a writ of execution for execution within the time limit established by law or immediately after its expiration.
According to the Normative Resolution of the Supreme Court "On certain issues of the execution of judicial acts in civil cases" in accordance with Article 126 of the CPC RK and Article 13 of the Law on Enforcement Proceedings, the court restores the deadline for the presentation of the enforcement document for execution if this deadline is missed for valid reasons.
Thus, when considering these applications, the courts should clarify the reasons for the admission and the validity of the admission. Valid reasons are illness, being on a business trip, and others.
Regulatory legal framework.
- The Constitution of the Republic of Kazakhstan dated August 30, 1995;
- The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM.;
- Civil Procedure Code of the Republic of Kazakhstan dated July 13, 1999 No. 411 (Expired);
- The Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs" dated April 2, 2010 No. 261-IV;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the execution of judicial acts in civil cases" dated June 29, 2009 No. 6 (effective during the generalization period, subsequently expired on March 31, 2017);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" dated March 31, 2017 No. 1.
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