Successful case of refusal to issue a duplicate executive document
No.7599-23-00-2a/3821 No. 7540-23-00-2m/3637 2023
In the proceedings of the district Court no.2 Auezovsky district of Almaty found the material under No. 7540-23-00-2m/1846 according to the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate executive document. We disagree with the claimant's arguments for the following reasons:
On June 6, 2017, the decision of the District Court No. 2 of Almaty dated February 24, 2017 entered into force.
According to art. 241 of the Civil Procedure Code of the Republic of Kazakhstan, a decision in accordance with the procedure established by this Code is enforceable after its entry into force, except in cases of immediate execution.
We all know that the recoverer received the writ of execution properly after the court decision came into force. One executive document is issued for each court decision.
About 6 years have passed since the court's decision came into force. However, in accordance with Article 11 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", which explicitly stipulates that writ of execution may be submitted for enforcement within three years.
According to paragraph 2 of Article 242 of the Civil Procedure Code of the Republic of Kazakhstan, an application for the issuance of a duplicate executive document may be filed with the court before the expiration of the deadline set for the presentation of the executive document for execution.
However, it is important to note that the claimant has not contacted the bailiffs to initiate enforcement proceedings since receiving the writ of execution.
The claimant indicates in the application that specialist B.Z., who received the writ of execution on June 16, 2018, resigned on June 30, 2021. It is also indicated that the Head of the department of accounting, housing distribution and issuance of title documents, who supervised the execution of this court decision, who worked from 2017 to 2020, E. A. Amirov, resigned in 2022.
Dear Court, it should be noted that the management staff who were responsible for the execution of the above-mentioned court decision missed the deadline for submitting a writ of execution before dismissal. In other words, we are not witnessing the loss of a writ of execution, but a negligent attitude towards our work.
According to paragraph 4 of Article 242 of the CPC RK, when considering an application for the issuance of a duplicate executive document, the court verifies and examines evidence of the loss of the executive document.
Based on the above and in accordance with paragraph 2 of Article 242 of the Civil Procedure Code of the Republic of Kazakhstan, the Court was asked to: Refuse to satisfy the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate writ of execution for the decision of the District Court No. 2 of Almaty dated February 24, 2017.
On March 24, 2023, the District Court no.2 Auezovsky district of Almaty under the chairmanship of judge Aldiev A.B.with the participation of a representative of the KSU "Department of Municipal Infrastructure Development of Almaty" S.S.Zh., defendants "Law and Law Law Firm" Sarzhanov G.T., defendants M.L.Zh., M.M.S., M.J.M., M.D.M., S.A.M. Having considered in open court the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate writ of execution, guided by Articles 242,268, 269 of the CPC RK, the court DETERMINED: The application of the KSU "Department of Municipal Infrastructure Development of Almaty Almaty" on the issue of a duplicate writ of execution, to satisfy. To issue a duplicate of the writ of execution for the eviction of Mambetyarova, Gazzat Zhilkishovna, with her family members M.L.Zh., M.M.S., M.Zh.M., M.D.M., S.A.M., which entered into force the decision of the Auezovsky District Court dated February 24, 2017, No. 2-13743/2016.
Disagreeing with the court's ruling, we filed a private complaint against the District Court's ruling no.2 of the Auezovsky District Court of Almaty dated March 24, 2023 on the following arguments.
On March 24, 2023, the district court no.2 Auezovsky district of Almaty, under the chairmanship of Judge Aldiev A.B., having considered the application of the KSU "Department of Municipal Infrastructure Development of Almaty" No. 7540-23-00-2m/1846 for the issuance of a duplicate writ of execution, the Judge determined that the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate writ of execution should be satisfied.
To issue a duplicate of the writ of execution for the eviction of M.L.Zh. with her family members, the final decision of the Auezovsky District Court dated February 24, 2017, No. 2-13743/2016.
During the consideration of this case, the court found that the writ of execution was received on 12.06.2018 by the acting chief specialist of the Department, B.Z., who resigned on June 30, 2021. The head of the Department of accounting, housing distribution and issuance of title documents, who supervised the execution of this court decision, who worked from 2017 to 2020, A.E.A., resigned in 2022.
However, Dear Board of Appeal, we consider the Definition to be illegal, unjustified and subject to cancellation on the following grounds:
Since the entry into force of the decision of the district court No.2 of the Auezovsky district of Almaty dated February 24, 2014, about 6 years have passed into legal force. However, in accordance with Article 11 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", which explicitly stipulates that writ of execution may be submitted for enforcement within three years.
According to paragraph 2 of Article 242 of the Civil Procedure Code of the Republic of Kazakhstan, an application for the issuance of a duplicate executive document may be filed with the court before the expiration of the deadline set for the presentation of the executive document for execution.
However, it is important to note that the claimant has not contacted the bailiffs to initiate enforcement proceedings since receiving the writ of execution.
We consider the plaintiff's arguments that the writ of execution was lost to be unfounded. The management staff, who were responsible for the execution of the above-mentioned court decision, missed the deadline for submitting a writ of execution before being dismissed. In other words, we are not witnessing the loss of a writ of execution, but a negligent attitude towards our work. The department employs a lot of employees. The dismissal of responsible employees is not a reason for recognizing the writ of execution as lost.
Paragraph 2 of Article 242 of the CPC RK stipulates that if the enforcement document was lost during execution and the recoverer became aware of it after the deadline for submitting it for execution expired, an application for a duplicate of the enforcement document may be filed with the court within one month from the day when the recoverer became aware of the loss of the enforcement document.
The Court found that it was not possible to find any materials on enforcement proceedings against the M.vykh family in the departmental archive of the Department for the period 2018-2022.
According to paragraph 5 of Article 242 of the CPC of the Republic of Kazakhstan, a private complaint may be filed against a court ruling, and a petition may be filed by the prosecutor with the court of appeal, whose decision is final.
Based on the above and in accordance with paragraph 5 of art. 242 of the CPC RK, the Court of Appeal requested the Ruling of the District Court no.2 of the Auezovsky District Court of Almaty dated March 24, 2023 – to cancel.
On May 03, 2023, the Judicial Board for Civil Cases of the Almaty City Court, consisting of the presiding judge Zhailaubai Zh.N., with the participation of the defendant M.L.Zh., his representative Sarzhanov G.T., having considered in open court, via mobile videoconference, the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate writ of execution, received on the basis of a private complaint by the representative of the defendant, G.T. Sarzhanov. Based on the ruling of the District court No. 2 of the Auezovsky district of Almaty dated March 24, 2023, guided by subparagraph 2 of Part 6 and part 7 of Article 429 of the CPC, the judicial board DETERMINED: The ruling of the District court No. 2 of the Auezovsky district of Almaty dated March 24, 2023 is to cancel and send the materials to the court of first instance for a new hearing. To satisfy the private complaint of the defendant Sarzhanov G.T..
On May 30, 2023, the District Court no.2 Auezovsky district of Almaty, chaired by Judge Aldiev A.B., with Secretary Miral A.D., with the participation of defendants "Law Firm Law and Law" Sarzhanova G.T., defendants M.L.Zh., M.M.S. having considered in open court the application of the KSU "Department of Municipal Infrastructure Development of Almaty"for the issuance of a duplicate writ of execution 242,268, 269 of the Civil Procedure Code of the Republic of Kazakhstan, the court DETERMINED: To refuse the application of the KSU "Department of Municipal Infrastructure Development of Almaty" for the issuance of a duplicate writ of execution
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