When the claim for the withdrawal of property from the illegal possession of another is considered in court, the defendant is not required to submit a counterclaim for recognizing himself as a bona fide buyer
"Plaintiff S. defendants-Z., N., zh., Department of Justice of South Kazakhstan region, Department of architectural and construction of South Kazakhstan region, state institution "" Department of land relations of Shymkent "" filed a lawsuit against the court, requesting invalidation of transactions of purchase and sale of property, state acts of land, their registration, a letter on the lease of a disputed house, a letter of trust issued for the sale of land, an act of acceptance of a house, originals of House documents." In the counterclaim, N. asked to recognize himself as an honest buyer. By the decision of the Abay District Court of Shymkent on December 29, 2011, the claim of S. was fully satisfied, and the disputed transactions, receipt, letter of Trust, Act of acceptance of the House, State Acts issued to the defendants, their registration were declared invalid.
The Appellate Judicial Board of the South Kazakhstan regional court left the court's decision unchanged, without satisfying the claims of the defendant N. The court of Cassation canceled the decision of the court of First Instance and the decision of the court of Appeal, leaving the statement of claim of S. unsatisfied. He made a new decision to satisfy N.'s claim. At the protest of the prosecutor general of the Republic of Kazakhstan, the decision adopted by the Judicial Board of cassation on the case was canceled, the courts of the first and appellate instance changed the judicial acts, and at the request of N. to recognize himself as a bona fide owner, the case was dismissed from production, and in the rest the judicial acts of the first and appellate instance were left unchanged. The Judicial Board of supervision of civil and administrative cases of the Supreme Court considers the conclusion of the prosecutor in support of the protest, the arguments of the representative of S. in support of the protest, Z. I listened to the opinion of the trustee of N. against the protest, studied the civil case and adopted a resolution on partial satisfaction of the protest. In accordance with Part 3 of Article 387 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. According to the case documents, on July 22, 2005, M. a contract for the purchase and sale of a residential building located on Kazakhbaev Street in Shymkent for 1,000,000 tenge was concluded between S. and S. On the basis of the purchase and sale agreement dated August 2, 2010, M. sold the disputed house to N. for 22,050,000 tenge. The courts of the first and appellate instance concluded that S. had no intention of selling the disputed House, pledged it to an acquaintance A. in order to borrow money, in connection with which there was no intention of selling or buying a disputed house between the parties, the transaction was concluded only with the aim of masking the Pledge Agreement. The Judicial Board of Cassation S. on the grounds that he did not prove his arguments properly and the statute of limitations expired, he canceled the acts of previous judicial instances and made a new decision. The supervisory Judicial Board partially agrees with the conclusion of the court of Cassation in connection with the following circumstances.
When the claim for the withdrawal of property from the illegal possession of another is considered in court, the defendant is not required to submit a counterclaim for recognizing himself as a bona fide buyer
Plaintiff S. did not actually sell the disputed house, but only signed the disputed transaction, thinking that it was a guarantee contract, and could not prove his arguments in court in accordance with Article 65 of the code of criminal procedure. On the contrary, according to articles 68 and 65 of the code of criminal procedure, according to the case materials, a contract for the purchase and sale of a house was actually concluded between Z. and S., The buyer of the house, with an agreement officially formalized between the parties, although the contract was signed by the plaintiff himself, and S., who signed the document. as evidenced by the conclusion of experts, the plaintiff's spouse K.'s application for consent to the sale of the House, not collateral, two receipts of the plaintiff: "I sold the house on July 22, 2005, and since then I have been living in the house as a tenant", a letter of trust issued by S. to Z. for the sale of land near the house, that is, documents written, signed and officially executed by the plaintiff himself.
S.'s comments to the head of the District Department of internal affairs also prove that he sold the House. However, in the protest of the prosecutor, referring to the requirement of Article 160 of the code of criminal procedure, it is unfounded that Z. committed the act in relation to the disputed housing only for the sake of deception, without the intention of causing legitimate consequences. In accordance with paragraph 18 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 5" on some issues related to the protection of property rights to housing", the defendant is not required to submit a counterclaim to recognize himself as a bona fide recipient, since when considering vindicative (on the claim of property from the illegal possession of another) claims, it is the duty of the court to resolve this issue. Nevertheless, the court of Cassation, contrary to the requirements of Article 247 of the code of criminal procedure, illegally accepted and unreasonably satisfied N.'s application asking to recognize himself as an honest owner. In such a context of the case, the supervisory judicial board considers it necessary to amend the disputed judicial act and dismiss the case from production for the part related to the statement of claim in which N. asked to recognize himself as an honest owner. In the rest, the resolution is left unchanged.
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