14. Legal Department 2021/554 E. , 2021/1438 K.
“Text Of Jurisprudence”
14. law office
COURT OF First Instance: Court of First Instance
14.10.2014 preemption by the plaintiffs against the defendant by Attorney given on the day the petition due to the cancellation of the deed and registration at the end of the trial, the result of the request; the absence of the circumstances of the case the plaintiffs and plaintiff separately provision given for rejection 12.12.2014 blog yargitayca examination by the attorney asked, but apparently once the petition of Appeal has been decided upon the adoption of time, and resolved it by examining all the papers in the file:
decision
The case concerns the cancellation of the title deed based on the right of pre-registration and the request for registration.
The deputy plaintiffs stated that the plaintiffs had entered into a construction contract with the defendant company in exchange for a floor, Karsiyaka 2. The Commercial Court of First Instance has filed a lawsuit against the debtor company with the file No. 94 of 2013 and the decision has been made to accept the case, ilami Karsiyaka 3. To follow up with the Executive Directorate of 2013/12953 a numbered file they put semeresiz left pursuit, the defendant is a debtor in the case of a company Holdings stock transfer, noting that the savings made for the purpose of smuggling collusive transfer cancellation, if it does not, because the right of lien of the deed of cancellation of registration with the decision to be given to that requested.
The defendant’s deputy defended the refusal of the case.
The court decided to review the case from the point of view of the request for preliminary approval and recorded it on a separate basis, and on the grounds that the sale price was not stored, it was decided to dismiss the case from the absence of a lawsuit requirement.
The judgment has been appealed by the plaintiff’s nobles and the deputy plaintiffs.
The pre-emption right is a right that gives other stakeholders the authority to purchase that share first if the share is sold to a third party in real estate subject to the provisions of shared ownership. This right arises as soon as the shared ownership relationship is established and becomes available when the share is sold to a third party.
With the use of the pre-decis dec right, a sale relationship is established between the stakeholder exercising this right and the buyer, the scope and terms of which are the same as the contract concluded between the seller and the respondent. The prepayment fee is the sum of the sale price shown in the title deed and the fees and expenses paid by the defendant.
In the pre-trial case, the pre-trial price, which is the sum of the sales price of the share subject to litigation and the mandatory fees and expenses to be paid, is 734/2 of the Turkish Civil Code No. 4721. in accordance with the article, the plaintiff must be given time to store it within an appropriate time to be determined by the court before sentencing. It may also be decided by the court that this period granted to the plaintiff is final. 94 of HMK No. 6100 if the stipulated transaction is not fulfilled within the specified time period. according to the article, the right of the party that does not make the transaction within the period of time to make this transaction is eliminated. However, in order for the provision of this article to be applied, the plaintiff must act in a manner that will leave the case pending.
On the other hand, the Civil Procedure Code No. 6100 has divided the trial of the first degree into stages. These stages are:
a) Mutual submission of petitions,
b)Preliminary examination,
C)investigation,
d) Oral judgment,
e) The Provision
it consists of five stages.
The purpose of the pre-examination stage organized in the “Fourth Section of the Code of Civil Procedure” is to make the necessary preparations before proceeding to the investigation stage, thus ensuring that both the court and the parties proceed to the investigation stage free of the reasons that will cause the case to be prolonged with full dominance of the case (Pekcanitez / Atalay/Özekes, p.375-376; Ermenek, Ibrahim: ”Preliminary examination according to the Law of Civil Procedure”, Journal of Inonu University Faculty of Law, C. 2, P. 1, Y. 2011, p. 145-146). When the regulations on this subject are actually reviewed, HMK No. 6100 has 137. in its article, the scope of the preliminary examination is; 138. article 139 – Decisions to be made on the terms of the case and the first objections on the file at the preliminary examination stage. article 140 of the invitation to a preliminary examination hearing. a preliminary examination hearing has been held, which is mandatory in the article.
A closer look at the regulations; HMK No. 6100 137 entitled The scope of the preliminary review. article 138, in which a preliminary examination will be conducted after the mutual submission of petitions. in considering the item, primarily in litigation of the case to be decided via a file on preliminary objections and the requirements of the preliminary objections about the conditions and, if necessary, the court before you make your decision on this issue during the preliminary hearing, the parties are able to listen, within the scope of the claims and defenses of the parties during the preliminary hearing of the dispute can specify exactly the issues that the parties present their evidence and the preparation process for the collection of evidence will do the required operations on the parties in that case you can save freely, it is stated that it will encourage them to come to a peace or mediation, and these issues will be recorded in the minutes. It is envisaged that such actions as listening to witnesses, examining documents, obtaining expert opinions, making discoveries and offering oaths will be performed at the preliminary examination hearing, limited to the terms of the case and the first objections.
Considering the transactions to be made at the preliminary examination stage, it can be said that the preliminary examination is considered a prerequisite for an effective investigation (Ermenek, p. 146). As a matter of fact, it has been regulated in HMK m, 137/2 that “an investigation cannot be started without completing a preliminary examination and making the necessary decisions, and no hearing day can be given for an investigation”. This regulation is an order-making regulation. In order to definitively prevent the continuation of old habits in the practice of unnecessary hearings, the legislator has strictly prohibited the transition to the investigation stage and the determination of the trial day for the investigation before the preliminary examination stage is completed and the decisions to be taken at this stage are taken (Pekcanitez/ Atalay/Özekes, p.375-376).
Reciprocal granting of the petition phase is completed after the first file and the first by examining these issues through the terms of a lawsuit objections made a decision to be positive or negative; file preliminary objections that cannot be decided on the basis of the decisions about the case with the conditions of, and other pre-preliminary hearing for the parties to be invited to a review process, 6100) HMK 137 and 140. according to its articles, after the necessary procedural actions have been taken at the preliminary examination hearing, it is necessary to proceed to the investigation hearing.
140 of HMK No. 6100. in accordance with the article, at the preliminary examination hearing; the parties should be given a definite period of 2 weeks to submit to the court the documents they have shown in their petition, but have not yet submitted, or to make the necessary statement in order to bring documents to be brought from elsewhere.
HMK 147. according to the article; “The parties are invited to the hearing for the investigation after the completion of the preliminary examination stage. If the parties are not present in court without a valid apology on the appointed day and time, the hearing will be continued in their absence and they will not be able to object to the actions taken in the invitation to be sent.”
HMK 114, on the other hand. (1) The terms of the case are as follows:
a) the presence of the right of jurisdiction of the Turkish courts.
b) The judicial way is permissible.
c) The court is in charge.
d) In cases where the authority is final, the court is authorized.
d) The parties have the license of the party and the case; in cases where legal representation is involved, the representative has the necessary qualifications.
e) Having the right to pursue a case.
f) In cases pursued through a proxy, the proxy must have a power of attorney for the case and have a duly issued power of attorney.
g) The amount of the expense advance that the plaintiff must deposit has been deposited.
d) Fulfillment of the requirement of the decision on the presentation of collateral.
h) The plaintiff has a legal interest in filing a lawsuit.
i) The fact that the same case has already been filed and is still being considered.
i) The fact that the same case has not previously been conclusively ruled on.
(2) The provisions related to the terms of the case contained in other laws are reserved. It contains editing in the form of.
In a concrete case, the court; with the invitation to the preliminary examination hearing dated 14.10.2014, the plaintiff’s deputy was given time to store the preliminary examination fee, and since the price was not stored at the preliminary examination hearing, it was decided to dismiss the case from the absence of the case requirement, although it is not true that the time that cannot be passed without completing the preliminary examination and taking the necessary decisions, and the time that must be given at the investigation stage cannot be given at this stage. Again, Article 114 of the Code of Civil Procedure. considering the regulation in the article, it was also not correct to decide to dismiss the case due to the absence of a case requirement, since the deposit of the preliminary fee was not issued as a case requirement, because the preliminary fee was not stored. For these reasons, the decision had to be overturned.
CONCLUSION: For the reasons described above, the decision was made unanimously on 03/03/2021 to OVERTURN the decision by the deputy plaintiffs and the acceptance of the plaintiffs’ appeals, to return the money deposited in advance to the depositor, within 15 days of the notification of the decision, the way to correct the decision was open