The sale of property is permitted by the court and not by the bailiff In accordance with the Law "On Enforcement Proceedings and the status of bailiffs" if the enforcement document contains an indication of the recovery of funds.
IP A. filed a lawsuit against JSC "E", LLP "L", a private bailiff of the Almaty city district. The plaintiff indicated that he was the debtor of JSC "E". In accordance with these circumstances, a writ of execution was issued on July 18, 2012. As part of the enforcement proceedings, the debtor's property was assessed, the market value of which amounted to 330,190,235 tenge. By a decree of the private bailiff A. dated April 24, 2013, this property was foreclosed on. By a decree dated February 28, 2014, the bidding using the English method was declared invalid due to the lack of buyers. On April 17, 2014, repeated auctions were held with a lower price and the property was sold for 198,114,141 tenge to L LLP. According to the plaintiff, the actions and orders of the bailiff are illegal, which prompted her to go to court. The claim was satisfied by the decision of the Bostandyk District Court of Almaty dated June 11, 2014. Auctions for the sale of property were declared invalid.
The decision of the private bailiff A. on recognizing the auction as having taken place and the bidding protocol of April 17, 2014 were canceled. By the ruling and decision of the Appellate Judicial Board for Civil and administrative cases, the decision of the court of first instance was overturned. The claim of IP A. was denied in full. By the decision of the court of cassation instance, the decision of the appellate judicial board was left unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan concluded that the contested judicial acts are subject to cancellation, while the decision of the court of first instance remains in force on the following grounds. Challenging the legality and validity of judicial acts of the appeal and cassation boards, the author of the petition pointed out that the court of first instance correctly identified and clarified the range of circumstances relevant to the case. In particular, by the ruling of the interdistrict Economic Court of Almaty dated November 15, 2011, a settlement agreement was approved, under the terms of which the plaintiff undertook to repay the debt in the amount of 254,273,400 tenge. At the same time, the court of first instance did not consider the issue of foreclosure on the debtor's property, meanwhile, the bailiff, by his decision, foreclosed on the property, which is illegal. These arguments are well-founded. It follows from article 2 of the Law "On Enforcement Proceedings and the Status of Bailiffs" that the tasks of enforcement proceedings are the mandatory and timely execution of enforcement documents issued on the basis of court decisions, rulings and resolutions in civil cases. Within the meaning of this provision, the bailiff is obliged to execute the enforcement document in a timely manner and in strict accordance with the judicial act. It is clear from the writ of execution issued to the recoverer that the debtor is obliged to pay the recoverer a certain amount of money. There are no instructions on foreclosure on property in this document, therefore, the bailiff, by virtue of the powers granted to him, is obliged to establish whether the debtor has funds and take measures to recover them. According to article 40 of the Law, if there are circumstances that make the execution of enforcement actions difficult or impossible, the recoverer or the debtor or the bailiff has the right to raise the issue of changing the method and procedure of execution before the court that reviewed the case or before the court at the place of execution. Within the meaning of the above rule, if the enforcement document contains an indication of the recovery of funds, and the bailiff has not established the existence of such funds, the issue of the sale of property is subject to resolution in accordance with the procedure provided for in the above article, by the court, and not by the bailiff.
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