General Assembly of Law 2014/939 E. , 2016/442 K.
“Text Of Jurisprudence”
COURT : Executive Civil Court
At the end of the trial held due to the “decommissioning” case between the parties; Bursa 6. Examination of the decision No. 04.06.2013 and No. 2013/256 E-2013/382 K issued by the Executive Civil Court on the acceptance of the case upon request of the deputy defendant, the Court of Cassation 6.With the decision of the Law Department dated 24.10.2013 and numbered 2013/12681 E-2013/14298 K;
(… When the enforcement proceedings initiated by the plaintiff creditor against the defendant debtor for the purpose of collecting the lease receivable were objected to by the defendant debtor within the time limit, the plaintiff requested an eviction without requesting the removal of the appeal from the enforcement court. Upon the decision of the court on the eviction, the decision was appealed by the defendant debtor.
The plaintiff’s creditor voluntarily requested the collection of the rent receivable of 43500 TL through the enforcement proceedings initiated against the defendant debtor, and upon notification of the payment order to the debtor on 03.08.2013, the defendant debtor requested the termination of the pursuit in his appeal petition filed on 11.03.2013, stating that he did not owe the rent.
Bursa 18. Executive Directorate of the Main numbered 2013/584 file was sent to the debtor if the execution of the payment order from Study 2 times, the first one at the address on the absence of notification in accordance with 21 TK upon notification, the creditor’s attorney of improper initial after notification, the debtor dated 07.03.2013 with the demand, re-order Payment Notification where the decision is made, and this time the debtor duly notified of the payment order is understood to have been on 03.08.2013. If the payment order is re-notified at the request of the creditor, the final payment order must be concluded on the basis of the notification date. If the defendant has not filed an objection to the defendant’s follow-up file and the eviction has been decided by the court, it is clear that the borrower has filed an objection to the payment order according to the effective notification date for the duration of the order, even though the plaintiff’s attorney has requested that the defendant be decided to evict the tenant from the real estate by stating that he has not objected to the payment order in the petition petition. In this case, it is not correct to decide on eviction before the court decides to lift the appeal.
The decision must therefore be overturned…)
at the end of the retrial, the court resisted the previous decision by overturning the grounds and reversing the file instead of the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
The case is related to the request for eviction due to the finalized follow-up.
Plaintiff attorney; a lease relationship exists between the parties that the lease with the collection of receivables and unpaid prompt evacuation of the defendant-tenant about has started enforcement proceedings if no appeals are filed for payment of the order date 25.02.2013 in spite of notification stating that the payment of the debt was 269 …s as/a the defendant in accordance with article move the lessee the leased wanted to be given to the decision to evacuate.
The defendant attorney ; the lease agreement dated 01.01.2007 and for a period of 3 years, on which the plaintiff is based, is subject to the general provisions of the Code of Obligations, not the provisions on residential and roofed real estate leases, so the contract has expired, the price to be requested after the expiration of the contract is ecrimisil, as this issue requires a trial, the courts of general law are in charge, a decision on dismissal must be made, between the parties with Nilüfer Municipality is the principal lessor in the case before the civil court, by the plaintiff to the start of the rental of Nilüfer Municipality, he declares, therefore, that the plaintiff’s animosity is not a license to party on appeal that were unsuitable for in the lease agreement underlying the plaintiff’s ”karting track-parking and a licensed veridig revenue that is subject to the provisions of the lease agreement of rent, the notice of default (payment order) is the payment period of 60 days should be given to, he defended the rejection of the case by stating that the warning (payment order) was irregular due to the fact that a 30-day payment period was granted.
On 25.02.2013, the court decided to accept the case on the grounds that, despite the notification of the payment order, the debt was not challenged, and the debt was not paid, default conditions were established.
Upon the appeal of the defendant’s attorney, the judgment was overturned by the Special Department on the grounds written above.
Local Court; in the trace file at the request of the creditor to the debtor’s attorney on 11.03.2013 08.03.2013 a payment order upon the borrower to file an appeal on the second communication given in payment of the Executive Directorate on the date of the order deadline 15.03.2013 25.02.2013 that it has been communicated in due time and decided to refuse the request for appeal because it was not objected to where you decide to stop the pursuit, the borrower is aware of the case in the following file from eviction deadline 15.03.2013 decision dated to the court by way of execution within a 7 day period, even though the complaint has not requested the cancellation of the decision that, in this form, the decision to resist was made on the grounds that the follow-up was finalized.
The decision to resist is appealed by the defendant’s deputy.
The dispute that comes before the General Assembly of the Law; Upon the notification of the payment order irregularly, upon the request of the creditor and the objection petition issued during the second time when the payment order was notified, the enforcement directorate decides to reject the appeal request, whether the follow-up is finalized or not, whether the release decision based on the follow-up that is finalized according to the conclusion to be reached can be made at the point.
According to the established practice of the Supreme Court, the sending of a payment order to the debtor for a second time means that he has been granted a new right of appeal and its duration. In this case, it is necessary to reach a conclusion on the basis of the second payment order (on 11.11.2009 days of the General Meeting of the Law and E:2009/12-417, K:2009/511, 20.03.2013 day and E:2012/12-1129, K:2013/380 ). There is also no dispute about this in the concrete case.
Upon notification of the payment order for the second time, it appears that the defendant-debtor objected during the time, but it was decided to reject the request by the executive director on the grounds that the objection was not within the time according to the date of notification of the first payment order.
269 of the Enforcement Bankruptcy Code No. 2004 on the eviction of leased real estate. in the article
”if the follow-up is subject to ordinary rents or revenue rents and the creditor also requests a payment order, the notice written in Articles 260 and 288 of the Code of Obligations and the notification that the debtor may be asked to remove the debtor from the leased after the legal period has elapsed.
Upon this notification, the debtor is obliged to notify the enforcement agency within seven days of the reasons for the appeal in accordance with the provisions of Article 62. If the debtor does not reject the lease agreement and, if any, his signature on the contract explicitly and definitively in his objection, the agreement is deemed to have been accepted.
The appeal stops the proceedings. The creditor who does not want the objection to be removed within six months from the date of notification of the objection cannot follow up with an ilamless execution method due to the same receivable again.
In cases where Article 260 of the Code of Obligations allows the lessor to terminate the agreement at the end of a six-day grace period, the appeal period is three days.it contains the provision “.
Article 269 / d of the same law should also be applied in the follow-up on the eviction of leased real estate by sending 66. in the article, the appeal made within the “time limit” stops the follow-up. If the objection is not valid, the bailiff will continue the follow-up procedures for the full amount of the receivable at the request of the creditor. If the debtor has objected to only a part of the debt, the follow-up is continued for the amount he has accepted.
If the debtor has refused to sign in his objection, the creditor may immediately request a subpoena of the applied signatures from the enforcement agency.” the provision is contained in the.
During the follow-up through the general lien, a valid and valid objection stops the enforcement proceedings on its own. The follow-up that stops on the appeal cannot be continued until the appeal is resolved.
The executive director examines whether an appeal has been filed within the time limit. A complaint can be filed against the decision of the executive director on the duration of the appeal and the absence of a valid appeal. However, during the appeal period and if it is valid, the enforcement proceedings will be stopped even if the complaint method is not resorted to. In this case, the erroneous decision of the executive director does not have consequences, even if it is not a civil decision and has not been canceled through a complaint.It cannot be said that the follow-up is completed because the follow-up stops spontaneously by objecting to the duration.
During the negotiations held at the General Assembly of the Law, it was argued that the decision to resist should be upheld on the grounds that the executive director’s action was erroneous but valid unless canceled, but this opinion was not adopted by the majority.
On the other hand, in the hymn of bozma ”Bursa 9.The file of the Executive Directorate numbered 2013/584 E “instead of “Bursa 18.Although the date ”03.08.2013” was written instead of ”08.03.2013” as the date of the notification of the Enforcement Directorate’s file No. 584/2013” and the second payment order, the inaccuracy was mentioned because these issues are related to a material error and do not affect the result.
In that case, while the decision to overturn the Special Chamber adopted by the General Assembly of the Law should be followed, it is contrary to the procedure and the law to resist the previous decision.
S O N U Ç: With the acceptance of the defendant’s deputy’s appeals, it was decided by a majority vote on 30.03.2016 that the decision to resist would be OVERTURNED for the reasons shown in the decision to overturn the Special Chamber, and if desired, the advance fee for the appeal would be returned to the depositor.
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