The courts imposed an obligation on the CHSI to cancel the arrest lawfully imposed by him on the disputed real estate in the framework of enforcement proceedings.

No.6001-23-00-6ap/283 dated 06/14/2023

Plaintiff: I.A.

Defendant: CHSI "AA"

The subject of the dispute: on the assignment of the obligation to issue a resolution on the cancellation of the seizure of immovable property imposed by the decree of September 15, 2021.

Review of the cassation appeal of the person concerned

PLOT:

The plaintiff I.A. and the debtor for enforcement proceedings I.U. had been married since July 2, 1964.

During the marriage, they acquired real estate in the form of an apartment, a garden house and land plots.

On June 18, 2013, a guarantee agreement was signed between the Bank and I.U., according to which I.U. acted as a guarantor for the repayment of the bank loan.

On July 1, 2014, a prenuptial agreement was concluded between plaintiff I.A. and I.U., under the terms of which the personal property of I.A.'s spouse is specifically defined immovable property, including property under the contested resolution, with the exception of land plots.

The marriage contract is notarized and registered in the registry.

By the effective decision of the District court of the Almaty region dated June 3, 2016, part of the debt in the amount of 489 million tenge and court costs were recovered from I.U., JSC "D", D.A., LLP "T" in favor of the Bank.

A writ of execution has been issued and an IP has been initiated, which is under production at CHSI AA.

On July 2, 2020, by a court decision, the marriage between the plaintiff and I.U. was dissolved.

On September 15, 2021, the disputed real estate was seized as part of the enforcement proceedings.

The plaintiff I.U. applied to the CSI for release from the seizure of immovable property, stating that according to the prenuptial agreement dated July 1, 2014, only he is the owner of the immovable property, and I.U. has no share in the immovable property.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision remains unchanged.

Cassation: judicial acts of local courts are annulled with the issuance of a new decision to dismiss the claim.

Conclusions: The Board, canceling judicial acts, indicated that the marriage contract between I. was certified only by a notary, the specified contract did not go through the registration procedure with the registering authority, which is a violation of the requirements of Articles 118, 238 of the Civil Code, Article 7 of the Law "On State Registration of Rights to Immovable Property", Article 17 of the Law "On housing relations" and the clauses of the prenuptial agreement indicating that the plaintiff must properly register his right to the property.

Thus, based on the meaning of the above-mentioned provisions of the Law, the board came to the conclusion that one of the mandatory measures of civil protection aimed at the execution of the enforcement document is the seizure of property belonging to the debtor. In view of this, the CSI reasonably issued the appealed arrest order.

 

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