Through an unjustified combination of enforcement proceedings, real estate was put up for auction and sold according to an assessment illegally conducted in another enforcement proceeding.
B. filed a lawsuit with the court against the Yenbekshinsky territorial section of the Department for the Enforcement of Judicial Acts of the South Kazakhstan region, against third parties: the branch of JSC "B" in the South Kazakhstan region, LLP "J" for the recognition of illegal and cancellation of court auctions for the sale of collateral. By the decision of the Yenbekshinsky District Court of Shymkent dated July 31, 2012, the requirements of B. satisfied, it was decided to declare illegal and cancel the results of the auction dated April 18, 2012 for the sale of the seized property – an administrative building, a mechanical workshop with an area of 3,868.70 square meters.m. and a land plot on the right of private ownership with an area of 2,6347 hectares, cadastral No. 19-309-128-011, located at the address: South Kazakhstan region, Sairam district (hereinafter – collateral property). By a decision of the Appellate Judicial Board for Civil and Administrative cases of the South Kazakhstan Regional Court dated September 20, 2012, the court's decision was overturned with a new decision rejecting B.'s claims by a decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated November 5, 2012, the decision of the appeals board remained unchanged.
Through an unjustified combination of enforcement proceedings, real estate was put up for auction and sold according to an assessment illegally conducted in another enforcement proceeding.
By the resolution of the Supervisory Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated February 6, 2014, the initiation of supervisory proceedings to review the decision of the Appellate Judicial Board for Civil and Administrative cases of the South Kazakhstan Regional Court dated September 20, 2012 and the decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated November 5, 2012 was refused. In the protest, the Prosecutor General asked to cancel the decisions of the appellate and cassation judicial boards, upholding the decision of the court of first instance, pointing out that the judicial acts in the case did not meet the requirements of Article 218 of the Code of Civil Procedure (hereinafter – CPC), paragraphs 5 and 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "About the court decision." Having examined the case materials, the supervisory board of the Supreme Court of the Republic of Kazakhstan found the protest arguments justified on the following grounds. It follows from the case file that on April 18, 2012, bailiff T. conducted auctions for the sale of the seized property – an administrative building and a mechanical workshop with an area of 3,868.70 square meters, a storeroom with an area of 753.3 square meters, a storeroom with an area of 563.3 square meters and a private land plot with an area of 2,6347 hectares (cadastral No. 19-309-128-011), located at the address: South Kazakhstan region, Sairam district. LLP "J" was recognized as the winner of the auction, offering 31,921,766 tenge. These auctions were appealed by the owner of B.'s property in court. The courts of appeal and cassation, rejecting B.'s claim, concluded that the court of first instance, having gone beyond the stated requirements, unlawfully gave a legal assessment of the act on the valuation of property.
There were no violations of the law in the actions of the bailiff. Meanwhile, the conclusions of the courts of appeal and cassation instances are unfounded. Bailiff T. during the execution of judicial acts in relation to LLP "N" committed significant violations of the law on enforcement proceedings and the status of bailiffs and on the mortgage of real estate. It was established that the decision of the specialized interdistrict economic court of the South Kazakhstan region dated June 21, 2010 satisfied the claims of LLP "E" to LLP "N" on the appointment of judicial sale of part of the pledged property and recovery of expenses for the payment of state duty. That is, the judicial sale of a part of the pledged property (production base) has been appointed LLP "N" in the amount of 294,962,500 tenge, located at the address: Shymkent city, Sairam district, Southern industrial zone, b/n (administrative building with an area of 3868.70 sq.m., storeroom with an area of 753.3 sq.m., storeroom with an area of 563.3 sq.m. and a private land plot with an area of 2.6347 ha (cadastral number 19-309-128-011), located at the address: Sairamsky district, South Kazakhstan region. Owner B.). The costs of paying the state duty in the amount of 8,848,875 tenge were collected from LLP "N" in favor of LLP "E". On November 22, 2010, the bailiff of the Yenbekshinsky territorial department K. initiated enforcement proceedings in pursuance of this court decision.
At the same time, enforcement proceedings were pending against the bailiff of the Abai territorial division, A., which were initiated on September 10, 2010, pursuant to the decision of the specialized interdistrict economic court of March 26, 2010 on the recovery of debt from LLP "N" in favor of JSC "N" in the amount of 105,920,238 tenge. During the execution of this decision on October 8, 2010, A. A decision was issued to foreclose on the production base owned by the pledgor, which was collateral under the pledge agreement No. 345 dated August 26, 2008, concluded between LLP "E" (the pledgee), LLP "N" (the borrower) and B. (the pledgor). On October 11, 2010, an application was submitted to the YUKF JSC "B" for an assessment of the specified property for No. 08-31/4276. According to the assessment report of the branch of JSC "B" No. 484 dated November 15, 2010, the cost of the production base amounted to 17,734,310 tenge. Meanwhile, neither the bailiff nor the higher courts took into account that B. she was not a debtor according to the above-mentioned court decision of March 26, 2010 (according to the claim of the Food Corporation). Consequently, foreclosing on her property and carrying out an assessment within the framework of this enforcement proceeding are illegal. The enforcement proceedings, according to which the judicial sale of the production base should be carried out, were initiated only on November 22, 2010, that is, 7 days after its assessment.
In accordance with article 109 of the Law "On Enforcement Proceedings and the Status of Bailiffs", persons who have enforcement documents in other cases may join the foreclosure process. These requirements apply in cases of receipt of funds from the debtor to the cash control account of a territorial authority or the current account of a private bailiff. In violation of these norms, on November 22, 2010, the bailiff unreasonably joined the enforcement
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