T.C.
JUDGMENT
8TH CIVIL CHAMBER
E. 2017/13162
K. 2017/10909
T. 18.9.2017
* VALIDITY OF THE INSOLVENCY REQUEST (In the Eviction Proceeding Request of the Lessor Creditor, besides the payment of the rent, it is obliged to request the eviction of the tenant in accordance with Art. 269/1 / Thus, the lessor will combine the eviction proceeding with the proceeding by way of general attachment for the rent – The Eviction Request should be written in the blank space opposite Section 7 of the Follow-up Request Sample / Also in Section 9, this request should be repeated in the form of re-attachment and eviction)
* EVACUATION OF THE TENANT (As it is seen from the examination of the Request for Eviction in the Enforcement Proceedings File that the Request for Eviction is not included in the Request, it is seen that the Enforcement Directorate cannot send a 13 Sample Payment Order to the Debtor based on the Proceedings without a Request for Eviction / Even if it is sent, the Creditor cannot request the Evacuation of the Immovable from the Enforcement Court based on such a Payment Order – The Court will reject the Evacuation Case filed based on the Request for Evacuation without a Request for Evacuation)
* EVACUATION LAWSUIT BASED ON THE INSOLVENCY REQUIREMENT WITH NO DEMAND FOR EVACUATION (The Evacuation Lawsuit Filed Based on the Enforcement Directorate’s 13 Sample Payment Order to the Debtor on the Basis of an Enforcement Proceeding Without a Demand for Evacuation cannot be Sent to the Debtor by the Enforcement Directorate / Even if it is sent, Since the Creditor cannot request the Evacuation of the Immovable from the Enforcement Court on the basis of such a Payment Order, the Evacuation Lawsuit Filed on the Basis of the Enforcement Proceeding Without a Demand for Evacuation Should be Rejected)
2004/m.269/1
SUMMARY : The lawsuit is related to the requests for removal of the objections of the defendant guarantors and eviction of the tenant. In order for the follow-up request to be valid and for the enforcement office to send a payment order to the debtor, the records that must be included in the follow-up request are called the conditions of the follow-up request. In the eviction proceeding request without judgement, the lessor creditor, in addition to the payment of the rent, must request the eviction of the tenant in accordance with Article 269/1 of the Code of Enforcement. Thus, the lessor combines the eviction proceeding with the proceeding by way of general attachment for the rent. The eviction request must be written in the blank space opposite the section numbered 7 of the follow-up request sample. In addition, in section 9, this request should be repeated in the form of repossession and eviction. From the examination of the follow-up request in the sample enforcement proceeding file available in the file, it is seen that the request does not include the evacuation request. Based on the proceeding without a request for evacuation, the enforcement directorate cannot send a 13 sample payment order to the debtor. The creditor cannot request the eviction of the immovable from the Enforcement Court based on such a payment order. In this case, while the court should decide to reject the eviction case filed based on the follow-up demand without an eviction request, it is erroneous to make an eviction decision.
LAWSUIT : At the end of the trial held in the above-mentioned case between the parties, the Court decided to accept the case and upon the appeal of the judgement by the attorney of the defendants, the file was examined and considered by the Chamber:
DECISION : The lawsuit is related to the requests for the removal of the objections of the defendant guarantors and the eviction of the tenant Melissa Agriculture and Agricultural Products Livestock…Trade Limited Company. The court decided to accept the case and the decision was appealed by the defendants.
1-) After all the defendants submitted a petition dated 02.03.2015 stating that they appealed the decision dated 02.03.2015, the defendant sureties submitted a petition of waiver dated 13.04.2015 stating that they waived their request for appeal and on the same day, they submitted another petition stating that they waived their request for waiver of appeal. Since the respondents’ waiver of the appeal is a unilateral declaration of will and it is not possible to waive this waiver, the appeal petitions of the defendant sureties are dismissed due to the waiver,
2-) As for the appeal of the defendant tenant company representative;
The plaintiff creditor’s attorney requested from the Enforcement Court to decide on the eviction of the defendant tenant based on the finalised enforcement proceeding, since the defendant tenant did not object to the payment order issued due to the enforcement proceeding initiated on 23.06.2014 for the collection of the alleged unpaid rents.
In order for the follow-up request to be valid and for the enforcement office to send a payment order to the debtor based on it, the records that must be included in the follow-up request are called the conditions of the follow-up request. In the eviction proceeding request without judgement, the lessor creditor, in addition to the payment of the rent, must request the eviction of the tenant in accordance with Article 269/1 of the Code of Enforcement. Thus, the lessor combines the eviction proceeding with the proceeding by way of general attachment for the rent. The eviction request must be written in the blank space opposite the section numbered 7 of the follow-up request sample. In addition, in section 9, this request should be repeated in the form of repossession and eviction.
From the examination of the follow-up request in the sample enforcement proceeding file available in the file, it is seen that the request does not include a request for evacuation. Based on the proceeding without an eviction request, the enforcement directorate cannot send a 13 sample payment order to the debtor. The creditor cannot request the eviction of the immovable from the Enforcement Court based on such a payment order. In this case, while the court should decide to reject the eviction case filed based on the follow-up demand without an eviction request, it is not correct to make an eviction decision with the written justification, and the decision should be reversed.
CONCLUSION : For the reasons written in subparagraph (2) above, it was decided unanimously on 18.09.2017 that the decision should be reversed by accepting the appeal requests of the defendant tenant representative, that the parties may request a 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 that the advance fee should be returned to the appellant if requested.
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