T.C.
JUDGMENT
8TH CIVIL CHAMBER
E. 2017/392
K. 2017/818
T. 30.1.2017
CASE : At the end of the trial held in the case between the parties and explained above, the Court decided to accept the case and upon the appeal of the judgement by the defendant, the file was examined and considered by the Chamber.
DECISION : Upon the objection of the defendant tenant to the eviction order issued by the plaintiff lessor due to the enforcement proceeding initiated by the plaintiff lessor against the defendant tenant based on the eviction commitment, the plaintiff applied to the Enforcement Court and requested the removal of the objection, continuation of the proceeding and eviction. The court decided to lift the objection and evacuate the leased property; the decision was appealed by the defendant.
With the enforcement proceeding initiated on 08.05.2015, the plaintiff requested the eviction of the immovable property based on the ordinary written document dated 08.06.2013 and 01.05.2015. The defendant tenant, in his objection within the time limit, clearly objected to the date in the eviction undertaking, stating that the lease agreement was actually concluded on the same day as the eviction undertaking, but the date of the lease agreement was shown as an earlier date with pressure to make the eviction undertaking valid.
The eviction undertaking, which forms the basis of the enforcement proceedings, has not been issued or certified by a notary public. Pursuant to Article 275 of the BEC and the CBK dated 04.12.1957 and numbered 11/26, the creditor cannot request the removal of the objection based on the eviction commitment whose date is denied even if the signature is affirmed, and the resolution of the dispute requires a judgement. In the concrete case, the defendant tenant has objected to the date of issuance, considering that the dispute requires a trial, it is not correct to decide to remove the objection and evacuate the leased property as written, while the request for removal of the objection should be rejected.
The decision should be reversed for this reason.
CONCLUSION : For the reasons explained above, it was unanimously decided on 30.01.2017 that the decision should be reversed, the parties may request for correction of the decision within 10 days from the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 366/3 of the EBL, and the advance fee should be returned to the appellant if requested.
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