In compensation lawsuits filed pursuant to Article 89/4 of the EBL against third parties who have made untruthful statements regarding a garnishment notice, the court fee is proportional (nispi). Therefore, the amount of compensation and the value of the lawsuit based on the loss suffered by the execution creditor must be indicated, and the plaintiff must pay the proportional court fee accordingly. The current decision of the 12th Civil Chamber of the Court of Cassation is as follows:
“Article 89/4 of the EBL stipulates: ‘If the third party objects to the garnishment notice within the prescribed period, the creditor may request that the third party be punished according to the first paragraph of Article 338 and also be sentenced to pay compensation by proving the contrary of the third party’s answer in the execution court. The execution court shall resolve the lawsuit regarding compensation according to general provisions.’ The subject of the compensation mentioned in the legal provision is the loss suffered by the execution creditor due to the third party’s untruthful statement against the garnishment notice. In this lawsuit, the plaintiff execution creditor must prove that the third party has made an untruthful statement. The contrary of the third party’s statement can be proven by any kind of evidence, without being limited to the documents listed in Article 68 of the EBL. Pursuant to the explicit provision of the aforementioned article, the execution court must proceed by conducting a trial according to general provisions.”
COURT OF CASSATION – 12th Civil Chamber
Basis No: 2016/12789 | Decision No: 2016/17553
SUMMARY: The application of the creditor to the execution court is a compensation lawsuit based on Article 89/4 of the EBL. Pursuant to Article 89/4 of the EBL, the execution court examines the lawsuit regarding compensation according to general provisions. Accordingly, the amount of compensation requested and the value of the case must be indicated in the lawsuit petition, and the plaintiff must pay a proportional court fee (nispi harç) accordingly.
In the concrete case, it is understood that the requested compensation amount and the value of the case were not indicated in the lawsuit petition, and a fixed court fee (maktu harç) was paid instead.
Under these circumstances, the court should have first requested the plaintiff creditor to clarify the amount of compensation requested pursuant to Article 31 of the CCP (Code of Civil Procedure), and after the missing court fee was completed, the trial should have continued within the framework of general provisions. Establishing a judgment with an incomplete examination by ignoring these matters is improper.
CONCLUSION: It was UNANIMOUSLY DECIDED on 22/06/2016 to REVERSE (BOZULMASINA) the decision for the reasons stated above.