In the enforcement proceeding and in this case regarding the cancellation of the objection to the enforcement proceeding for the collection of rent money and administrative expenses and the compensation for denial of enforcement, since the plaintiff has no eviction request and although there is no eviction request in the enforcement proceeding, the payment order sent by the execution directorate with the “Sample 13” eviction notice was not made as a complaint in the enforcement court by both parties, it is fixed that the plaintiff has no eviction request in the enforcement proceeding and in this case, it cannot be said that this issue is intended to create eviction pressure on the defendant tenant as accepted by the court and it should be decided to accept the case in terms of the receivables subject to the follow-up that cannot be proved to be paid by the defendant- There is no irregularity in demanding the management expenses paid by the plaintiff due to the defendant’s undertaking with the lease agreement but not paying it together with the lease receivables-
At the end of the trial held due to the “cancellation of the objection” lawsuit between the parties; Upon the request of the plaintiff’s attorney for examination of the decision dated 08.11.2012 and numbered 2012/344 Esas-2012/1101 Decision given by Uşak 1st Civil Court of Peace on the rejection of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 12.03.2013 and numbered 2013/1411 Esas-2013/4217 Decision;
(…The dispute is related to the cancellation of the objection to the enforcement proceedings for the collection of rent and management expenses and the compensation for denial of enforcement. The court decided to dismiss the case and the judgement was appealed by the plaintiff’s attorney.
There is no dispute between the parties regarding the one-year lease agreement dated 01.10.2010, which is relied upon in the lawsuit and taken as the basis of the judgement. In Article 6 of the special conditions section of the contract, it has been agreed that electricity, water, natural gas, heating, apartment expenses and environmental cleaning tax will belong to the tenant. This condition is valid and binds the parties. The plaintiff, with the execution proceeding initiated on 07.10.2011 in the execution file numbered 2011/1310 of Uşak 2nd Execution Directorate, demanded the collection of the rent for the months between August and October 2011 at 250 TL per month in accordance with the contract, three management expenses paid by the defendant due to non-payment of the rent and the cost of the notice with interest. Although the plaintiff did not request eviction in the follow-up request, the enforcement directorate notified the defendant a Sample 13 payment order with eviction notice, and the defendant claimed that he did not accept the debt with the objection petition submitted within the legal period, that he objected to the way the proceeding was carried out and the payment order, that the proceeding was a special proceeding and that the demands that could be requested with the Sample 13 payment order were determined in a limited manner. However, both in the enforcement proceedings and in this case filed upon objection, the plaintiff has no eviction request. Moreover, the plaintiff’s attorney has accepted that the leased property has been evacuated by declaring that the key was sent by the defendant on 30.11.2011 in the lawsuit petition. On the other hand, although there was no eviction request in the execution proceedings, the execution directorate mistakenly sent a payment order with Sample 13 eviction notice, which was not the subject of complaint by both parties in the execution court. Within the framework of all these explanations, it is seen that the plaintiff did not request eviction in the enforcement proceedings and in this case. Again, there is no irregularity in demanding the management expenses paid by the plaintiff together with the rent receivables, which the defendant undertook with the lease agreement but did not pay. It cannot be said that this issue is intended to create eviction pressure on the defendant tenant as accepted by the court. In this case, while the court should decide to accept the lawsuit in terms of the receivables subject to the follow-up, which cannot be proved to have been paid by the defendant, it was not deemed correct to make a judgement as written, and the decision had to be reversed….) and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of the General Assembly of Civil Chambers was appealed in due time and the papers in the file were read, the necessity was discussed:
According to the mutual claims and defences of the parties, the minutes and evidence in the file, and the reasons explained in the reversal decision, it is contrary to the procedure and the law to resist the previous decision, while it is necessary to comply with the reversal decision of the Special Chamber, which is also adopted by the General Assembly of Civil Chambers, that the case should be decided to be accepted in terms of the receivables subject to the follow-up, which cannot be proven to be paid by the defendant.
Therefore, the decision of resisting should be reversed.
CONCLUSION : It was unanimously decided on 22.04.2015 that the appeal objections of the plaintiff’s attorney are accepted and the decision to resist is reversed for the reasons shown in the Special Chamber’s reversal decision, and the advance appeal fee shall be returned to the depositor, if requested.
HGK. 22.04.2015 T. E: 2013/1775, K: 1255
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