JURISDICTION
12th Civil Chamber
Main Year/No: 2013/36071
Decision Year/No: 2014/2365
Date of decision: 29.01.2014
CANCELLATION OF THE AUCTION – THE DEBTOR’S OBJECTION TO THE VALUATION SHOULD BE EXAMINED BY CONDUCTING DISCOVERY AND EXPERT EXAMINATION ON SITE AND A DECISION SHOULD BE MADE ACCORDING TO THE RESULT – THE JUDGEMENT IS REVERSED
SUMMARY: In line with the explanations made by the court, the objection of the debtor F … T … to the valuation of the debtor F … T … should be examined by conducting discovery and expert examination at the scene and a decision should be made according to the result, but it is inappropriate to establish a judgement for the termination of the tender.
(2004 S. Code Art. 123, 128, 134, 150, 366) (6100 S. Code Art. 266)
Case and Decision: Upon the request of the creditor to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the neighbourhood, and after the report prepared by the Examining Judge G….. for the case file was listened to and all the documents in the file were read and examined, the matter was discussed and considered:
In the applications made by the complainant debtors to the enforcement court on 12.11.2012, 05.11. 2012, it is understood that the file was referred to the expert for the preparation of a report on whether there was any irregularity in the tender requested to be cancelled in accordance with the provisions of the EBL, and based on this report, it was decided to accept the complaint and terminate the tender on the grounds that the valuation report was not notified to some of the follow-up debtors and the sale of the immovable was not requested within 2 years in accordance with Article 150/e of the EBL.
Pursuant to Article 266 of the CCP, the judge may have an expert examination only in cases whose solution requires special or technical knowledge other than law. In matters that can be solved with the general and legal knowledge required by the profession of the judge, he cannot apply to the expert.
The tender of immovable property is regulated in Articles 123 et seq. of the BEC and the request for the cancellation of the tender is examined according to Article 134 of the BEC and the necessary decision is made by the court. Accordingly, the request for termination of the tender is a matter that can be resolved by the execution judge with the general and legal knowledge required by the profession of the judge, and since the expert opinion cannot be applied in this regard, it is clearly contrary to the law by conducting an expert examination and taking the report as basis.
According to the regulation in Article 128/2 of the BEC; “The report on the valuation shall be notified to the debtor, the creditors who have imposed a lien and other mortgaged creditors on the basis of their current addresses in the execution file where the notification is made, except in the event that it is notified separately, on the basis of their current addresses in the title deed.”
It has been claimed by the attorney of the complainant debtors that the valuation report was not notified to their clients, the debtors and other follow-up debtors and related persons. The right to request the cancellation of the tender due to the irregularity of the notification belongs only to the relevant person who has not been notified. Since the debtor requesting the termination of the auction cannot claim as a reason for the termination of the auction that the appraisal and the sale announcement were not notified to other interested parties other than himself, it is not correct for the court to consider the fact that the appraisal report was not notified to some debtors as a reason for the termination of the auction.
On the other hand, according to Article 150/e of the BEC, which should be applied as of the date of notification of the execution order, if the creditor does not request the sale of the immovable pledge within two years from the date of payment or notification of the execution order, the proceedings are cancelled. In the concrete case, the debtor I……. H…… on 07.04.2011, the debtor F…… T…… on 06.04.2011, the debtor N…… K……. on 28.03.2009, the creditor deposited the sales advance on 18.09.2012, and accordingly, the sale was requested within 2 years from the notification of the execution order.
According to Article 128/a of the BEC; “Those concerned to whom the appraisal is notified may file a complaint in the execution court in the place where the execution office that issued the report is located within 7 days from the notification of the report. ” According to the last paragraph of the same article, the decision of the execution court on the complaint against the valuation is final and cannot be appealed.
Although the decisions to be made by the court on the objection to the valuation are final, in cases where the right of complaint is used in due time, if the objection is rejected by the execution court without examination, it is possible to examine the decision of the execution court during the request for termination of the tender. However, those who do not use this opportunity stipulated by the law by not objecting to the appraisal in due time cannot assert the issues related to the appraisal as a reason for the termination of the tender.
If the complainant has filed a complaint within 7 days against the appraisal procedure of the execution office, he/she may request the termination of the tender according to Article 134 of the BEC on the grounds that the appraisal made by the execution office and the execution court is irregular.
In the concrete case, in the appraisal report dated 24.06.2011, which was taken as the basis for the tender, the value of the immovable was determined, the complainant debtors N…..K…… and İ….. H….. did not object to the appraisal by applying to the execution court in due time after the notification of the appraisal report to them, but the complainant debtor F….. T….. attorney objected to the appraisal by applying to the enforcement court within the 7-day complaint period upon notification of the appraisal report to him on 24.11.2011, it was seen that with the decision of Konya 2nd Enforcement Civil Court dated 29.02.2012 and numbered 2011/996 E., 2012/184K., it was decided to reject the objection due to the lack of a cause of action on the grounds that the plaintiff was not the owner of the immovable subject to the lawsuit.
Each of the debtors of the enforcement proceedings has the right to object to the appraisal without being the owner of the property that is appraised. In this case, the execution court decided to reject the objection of the complainant debtor F….. T…..’s objection to the appraisal without examining it is not correct.
In that case, in line with the explanations made above, the court should examine the objection of the debtor F … T … to the valuation of the debtor F … T … by conducting discovery and expert examination at the scene and make a decision according to the result, but it is inappropriate to establish a judgement for the termination of the auction on written grounds.
Conclusion With the acceptance of the creditor’s objections on appeal, the decision of the court is reversed for the reasons written above in accordance with Article 366 of the EBL and Article 428 of the HUMK, the prepaid fee may be refunded upon request, and it was unanimously decided on 29.01.2014, within 10 days after the notification of the judgement, the way of decision correction being open. (¤¤)
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