T.C.
JUDGMENT
12TH CIVIL COURT
E. 2016/4312
K. 2016/21715
T. 17.10.2016
CASE : Upon the request of the complainant to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the neighbourhood, and after listening to the report prepared by the Examining Judge … for the case file and after all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
DECISION : In the application made by the complainant tenant to the enforcement court, it is understood that the complainant tenant requested the cancellation of the proceeding by objecting to the sample 14 evacuation order and the evacuation commitment taken under pressure, and the court decided to reject the complaint on the grounds that the objection of the complainant was not one of the reasons for objection that could be put forward within the scope of Article 272 of the BEC, and that the decision of the enforcement directorate to reject the objection was correct as a result.
In the concrete case, the creditor initiated an execution proceeding without judgement with the request for the eviction of the immovable leased with a written lease agreement due to the expiration of the lease period, and upon the notification of the eviction order numbered sample 14 to the debtor on 13.11.2015, the debtor filed a petition of objection to the execution directorate on 18.11.2015. 2015, the debtor claimed that the addresses of the immovable subject to the eviction order and the immovable specified in the eviction undertaking were different and that the eviction undertaking was taken under pressure and requested the suspension of the proceeding, and the enforcement directorate decided to reject the request on 20.11.2015 on the grounds that the objection authority is the enforcement court.
In Article 274/1 of the BEC; “The tenant who wishes to object notifies the enforcement office with a petition or verbally within seven days from the notification of the eviction order. In this way, the objection stops the eviction proceedings”. According to the aforementioned article of law; the objection must be notified to the enforcement office within seven days from the notification of the eviction order. Pursuant to this provision, if the debtor objects to the eviction order in due time, the proceedings must be stopped by the enforcement office. The decision to the contrary is in the nature of non-fulfilment of a right and can be the subject of a complaint without being subject to the time limit pursuant to Article 16/2 of the EBL.
Pursuant to Article 33 of the CCP, legal advice belongs to the judge. The judge is bound only by the material facts and consequential claims asserted by the parties in a lawsuit, and is not bound by the provisions of the law on which they are based and their recommendations. He is obliged to apply the laws ex officio and to decide on the concluding claims in the claim and defence (04.06.1958 and 15/6 CCP).
Although the complainant has requested the cancellation of the proceeding due to the invalidity of the eviction commitment, which is the basis of the proceeding, because it was taken under duress, in fact, the reason for the debtor’s complaint to the court, as it can be understood from the petition of appeal, as per Article 274/2 of the EBL. Although the debtor made an objection to the execution office duly and in due time pursuant to Article 274/2 of the Bankruptcy Code, the execution office should have decided to stop the proceeding, but it was decided to reject the request on 20.11.2015 on the grounds that the objection authority is the execution court.
In that case, while the court should consider the complainant’s request as a complaint against the decision of the execution directorate dated 20.11.2015 and decide that the execution directorate should stop the proceeding pursuant to Article 274/1-2 of the BEC by accepting the complaint due to the fact that the complainant objected to the proceeding in due time, it is inappropriate to establish a judgement for the rejection of the request with the written justification.
CONCLUSION : With the acceptance of the complainant’s appeal objections, it was decided unanimously on 17/10/2016, in accordance with Articles 366 of the BEC and 428 of the HUMK for the reasons written above (DISMISSAL), the prepaid fee shall be refunded if requested, and the way of decision correction shall be open within 10 days from the notification of the judgement.
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