14. Legal Department 2021/1101 E. , 2021/2357 K.
“Text Of Jurisprudence”
14. law office
COURT : Magistrate’s Court
19.07.2018 given on the day the petition against the defendant by the plaintiff’s attorney with the result of the request retrial at the end of the trial; examination of the case the plaintiff requested by the deputy 18.10.2018 blog … yargitayca provision given for the rejection, but in time, apparently decided upon the adoption of the petition of Appeal has been resolved by examining all the papers in the file and:
Justication
The case relates to the request that the provision on the elimination of the partnership by sale be renewed by way of a refund of the judgment.
The plaintiff is … his deputy, Manisa 1. Dated 25.04.2007 2007/499 decision 2006/605 of the magistrate’s Court No. 38 No. 2711 sale of immovable principles and the elimination of the parcel by ref with island if it is decided to the partnership, the parties to appeal the decision was finalized on 09.07.2007 when he didn’t, but …while the trial continues with Land Registry Maliki’s judgment, has been informed of whether the notification is removed to an address that has been living abroad in Turkey and irregular notification, as a result, it was decided to accept the case without being a party to the case and requested that the trial be renewed by stating that the real estate subject to the case was sold.
The defendant … his deputy defended the dismissal of the case by stating that the notifications made to the plaintiff were duly received.
The court has decided to reject the request to renew the trial.
The decision was appealed by the plaintiff … the deputy.
375 of the Civil Procedure Code No. 6100 entitled “Reasons for the Return of the Trial”. in the article;
“(1) A refund of the proceedings may be requested on the basis of the following reasons:
a) The fact that the court was not formed in accordance with the law.
b) The judge who is prohibited from considering the case or whose refusal request is accepted as final by the authority has decided or participated in the decision.
c) The case has been heard and decided in the presence of persons who are not deputies or representatives.
ç) During the trial, a document that cannot be obtained for reasons that are not in the hands of the party convicted against it has been seized after the decision has been made.
d) The forgery of the deed based on the decision has been decided or the forgery of the deed has been confessed in front of the court or official authority.
e) It is fixed that the witness whose testimony is based on the decision gives false testimony after the decision.
f) It is fixed that the expert or translator deliberately makes a statement that contradicts the truth about the matter based on the provision.
g) The fact that the party whose favor has been decided on has perjured the oath taken on the basis of the decision is fixed by confession or written evidence.
d) A provision based on the decision has disappeared with another finalized provision.
h) The party whose favor has been decided has committed a fraudulent act that affects the decision.
i) After the conclusion of the decision made at the end of a case, in the second case, the parties, subject and reason of which are the same, a provision contrary to the previous one has been made and this provision has also been finalized.
i) the decision of the convention on the protection of human rights and fundamental freedoms or a protocol that was given by the breach of OCT, to be determined by the final judgment of the European Court of human rights or the European Court of human rights against the decision in reference to the decision giving amicable solution or as a result of a unilateral declaration of falling.
(2) In the cases referred to in paragraphs (e), (f) and (g) of the first paragraph, the extradition of the trial may be requested, subject to the condition that these reasons are determined by a finalized criminal conviction decision. If for no other reason than the absence of evidence the criminal prosecution could not be started or the conviction decision could not be made, the decision of the criminal court will not be sought. In this case, the reason for the return of the based trial must first be proved in the case of the return of the trial.”,
The provision has been included.
As for the concrete incident; one or more of the stakeholders opens the case for the elimination of the stakeholder against the other stakeholders. 27 of the Code of Civil Procedure No. 6100. in accordance with the article, it is mandatory that all stakeholders be involved in the case. According to the certificate of inheritance, which will be received in the event of the death of one of the stakeholders or partners, the merits of the work must be examined after the heirs are allowed to participate in the case.
The fact that it was decided to resolve the partnership in the absence of Nurittin oglu, who has been a stakeholder in the immovable property since 12.03.1996, without being duly directed to …, was decided 375 of the Code of Civil Procedure No. 6100. it is not one of the reasons for the extradition of a limited number of cases specified in the article. However, despite the fact that the legal entity was not duly provided with the organization of the party in the case of the elimination of the partnership for which the trial was requested, the decision was finalized, since it was not appealed. Therefore, since there is no finalized decision in terms of material law, the request is not as a refund of the trial, Manisa 1. With the acceptance of the Magistrate’s Court as an appeal request for the Decision No. 2006/605 dated 25.04.2007 and Decision No. 2007/499, the final comment dated 09.07.2007 was removed and the basis of the work was examined.
According to the conclusion, a decision should be made after receiving the defense and collecting the evidence, while it was not considered correct to make a decision with the missing party’s organization in writing without providing the party’s organization, for this reason, Manisa 1. The Magistrate’s Court’s decision No. 2006/605 of 25.04.2007 and Decision No. 2007/499 had to be overturned.
CONCLUSION: For the reasons described above, the plaintiff … with the acceptance of the appeals of his deputy, Manisa 1. The final decision of the Magistrate’s Court on the decision No. 2006/605 of 25.04.2007 and Decision No. 2007/499 was removed and the provision was OVERTURNED, there is no place for examining other issues for now, the fee deposited in advance was returned to the depositor, it was decided unanimously on 31.03.2021.