T.C.
JUDGMENT
12TH CIVIL COURT
E. 2016/32803
K. 2017/80
T. 5.1.2017
LAWSUIT : Upon the reversal of the judgement rendered by the court as a result of the lawsuit between the parties by our Chamber, the case file regarding the decision to resist with the date and number written above was sent to our Chamber pursuant to the provisional Article 4/1 added to the CCP No. 6100 by Article 45 of the Law No. 6763, which entered into force on 02.12.2016, and after listening to the report prepared by the Examining Judge … and after all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
DECISION : Based on the lease agreement signed between the muris and …, some of the heirs initiated a proceeding against … regarding the “eviction order in case the lease period of the immovable rented with a written contract expires”, and the creditor applied to the enforcement court for the cancellation of the proceeding, and the court ruled that it is illegal to initiate a proceeding according to Article 272 of the EBL without an eviction commitment. Upon the appeal of the decision, it has been seen that the court decided to accept the request on the grounds that the initiation of the proceeding according to Article 272 of the BEC without an eviction commitment constitutes a violation of the law, and upon the appeal of the decision, it has been ruled by our Chamber that the application of the creditor is in the nature of an objection according to the form of the proceeding, and while the application should be made to the execution directorate according to Article 274 of the BEC, it is not correct to evaluate the application as a complaint and to decide on the cancellation of the proceeding, and the court has resisted in its first decision.
Pursuant to Article 640 of the TMK, while the inheritance partnership continues, the heirs’ filing a lawsuit or initiating a proceeding regarding a right related to the inheritance depends on their acting together. In other words, it is not possible for some heirs or heirs to file a lawsuit or initiate enforcement proceedings for the right remaining within the scope of the inheritance, even if a will has been made to them, without ensuring the execution of the will. Therefore, if the inheritance company is going to pursue, the heirs have to act together, so there is a compulsory friendship between the heirs. This issue is a matter of public order and is taken into consideration by the court ex officio.
In that case, while all heirs should take part in the proceeding (according to the certificate of inheritance numbered 2014/278-505 E.K. of Ankara 5th Civil Court of Peace, in the concrete case), the court should decide on the cancellation of the proceeding since it is not possible to carry out the proceeding due to the fact that this has not occurred. Execution Law Court’s decision dated 31/03/2015 and numbered 2015/123 Esas- 2015/228 Decision dated 31/03/2015 regarding the cancellation of the proceeding should be approved since the result is correct, but it is understood that it was reversed by our Chamber, and it was necessary to decide to approve the court decision (since it is correct as a result).
CONCLUSION : 1-) The decision of our Chamber dated 22/12/2015 and numbered 2015/22537 E.- 2015/32557 K. to be reversed,
2-) With the rejection of the appeal objections of the creditors, it was unanimously decided on 05/01/2017, in accordance with Articles 366 of the EBL and 438 of the Code of Civil Procedure, that the decision of the Ankara 4th Execution Civil Court dated 31/03/2015 and numbered 2015/123 Main – 2015/228 Decision be approved, with the way of decision correction being open within 10 days from the notification of the judgement.
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