Violation of the right of an interested person in enforcement proceedings
No. 6001-23-00-6ap/1313 dated October 17, 2023
Plaintiff: JSC "E"
Defendant: HSI
Interested party: LLC "S"
The subject of the dispute: the contesting of actions.
Review of the plaintiff's cassation appeal
PLOT: JSC "E" is a recoverer in the enforcement proceedings for the recovery of damages from the oil company "C". On November 18, 2022, enforcement proceedings were initiated by the CHSI on the basis of enforcement notices on the recovery of wage arrears from the OJL "S" in favor of F.D., P.S., K.A., E.Z., D.E., S.T.
By a decree of the bailiff dated November 21, 2022, an arrest was imposed on immovable property – a land plot belonging to the debtor of the oil company "C" on the right of paid land use (lease).
In pursuance of the executive inscriptions, the bailiff issued a resolution on the appointment of an appraiser.
According to the report dated December 30, 2022, the market value of the land plot was 28,981,386 tenge.
On January 11, 2023, the CSI issued a permit to the debtor to sell the seized property at the price indicated in the above-mentioned report.
On the basis of this permit, an agreement for the purchase and sale of a land plot for 21,736,040 tenge was concluded between OJL "S" and K.B., which were distributed by the bailiff.
The claim is motivated by the fact that the plaintiff does not agree with the estimated value of the property, since the land plot contains an object of unfinished construction in the form of two floors of concrete blocks, which was not included in the subject of the assessment.
As part of the enforcement proceedings, a specialist assessed this real estate, the value of which was determined at 52 103,097 tenge. Thus, the assessment is biased, the debtor's property has not been fully assessed, which violates the plaintiff's rights as a recoverer in other enforcement proceedings.
Judicial acts:
1st instance: by a court ruling, the claim was returned on the basis of subparagraph 4) of the second part of Article 138 of the CPC (the claim was filed by a person who does not have the authority to file it).
Appeal: the court's ruling remains unchanged.
Cassation: judicial acts are annulled with the referral of the case for consideration on the merits to the court of first instance.
Conclusions: according to article 23 of the CPC, an interested party is a person whose rights, freedoms or legitimate interests are affected or may be affected by administrative (inaction). In accordance with the second part of Article 23, subparagraph 5) of the second part of Article 22 of the CPC, an interested person of an administrative procedure has the right to file a complaint against an administrative act, administrative action or omission.
Based on the above norms, it follows that JSC "E", being the recoverer of the enforcement proceedings for the recovery of damages from the OJL "C" initiated by the CSI, and the interested party in the enforcement proceedings initiated by the CSI, had every right to apply to the court for protection of their property rights, since the contested administrative act of the bailiff is for them burdensome.
This violation is significant, which entails the cancellation of the contested judicial acts with the referral of the case for a new hearing to the court of first instance in a different composition of the court.
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