T.C.
SUPREME
12. law office
MAIN NUMBER: 2016/3551
DECISION NO: 2016/17359
DECISION DATE: 20.6.2016
> BEFORE THE FOLLOW-UP IS FINALIZED, THE MONEY ENTERED INTO THE EXECUTION DIRECTORATE’S COFFERS SHOULD BE PAID TO THE CREDITOR AND REQUESTED TO THE EXECUTION DIRECTORATE’S COFFERS, AS IT WOULD NOT BE CORRECT IF IT WAS COMPLETELY EXECUTED.
SUMMARY: After the undeclared follow-up has been completed irregularly and the money has been collected from the debtor by foreclosure, if the Enforcement Court is given to stop the follow-up for the irregularity of the notification, the money paid to the creditor is requested to be refunded…
“since the follow-up has not yet been finalized, the payment of the money entering the execution directorate’s vault to the payee and the fact that the file has been completely executed based on this payment in the duly finalized follow-up will not be correct, the paid money in question should be requested to the execution directorate’s vault (paying the execution office bank account number by notifying the file number)”
Within the period of the court decision with the date and number written above, the appellate audit was requested by the creditor and the file related to this work was sent to the apartment from the scene and the report prepared by the Audit Judge for the case file was listened to and all the documents in the file were read and examined, then the need for the work was discussed and considered :
decision
In the follow-up through the general foreclosure initiated by the creditor, after paying the money deposited in the file to the creditor as a result of the foreclosure applied, the debtor’s pay order notification process is irregular due to the acceptance of the complaint (62 of the ICI by the enforcement directorate for the reason of the objection made during the period. in accordance with Article 361 of the IIK of the debtor’s attorney, it was decided to stop the prosecution). in accordance with the article, the request to send a memorandum to the creditor for the return of the money paid to the creditor was rejected by the enforcement directorate, and the debtor applied to the enforcement court with a request to cancel this refusal decision of his attorney.
The court decided to accept the complaint, the decision; Our Department dated 02.07.2015 and 2015/6081 E.-2015/18830 K. with the resolution numbered “361 of the IIK. in accordance with the article; If it is understood that the execution offices have collected more money from the debtor and given it to the creditor, or accidentally as a result of the account in which the money was paid to one party, the money given is also taken back from that person without the need for judgment. However, IIK’s 361. in order for the provision of the article to be applied, the enforcement office must have collected more money from the debtor or paid by mistake. The fact that it has been decided to accept the complaint of irregular notification does not invalidate the deductions made in advance. The process of deciding to accept the irregular notification complaint of the debtor and then stopping the follow-up due to an objection is 361 of the HRM. the substance is not sufficient for the acceptance of the conditions that have occurred. Therefore, the amount of money paid is 361 of the HRM. according to the article, it cannot be requested to be taken from the creditor and returned to the debtor. However, in this case, since the follow-up has not yet been finalized, the payment of the money entering the execution directorate’s vault to the creditor and the fact that the file has been completely executed based on this payment in the duly finalized follow-up will not be correct, the money paid in question should be requested to the execution directorate’s vault (paying the payee’s bank account number by notifying the file number)”.
This time, the court complied with the decision to overturn and it was decided that there was no room to decide on the case that remained without a subject, since it was understood that the creditor’s attorney had issued a memorandum to the creditor’s attorney to return the 46,798.11 TL paid to the creditor in accordance with the decision to overturn upon the request of the debtor’s attorney by submitting a decision to overturn the court, and therefore the lawsuit filed remained without a subject.
The procedural right has arisen for the benefit of the party in favor of the decision to comply with the decision to overturn by the court, to conduct an examination and establish a verdict in accordance with the decision to overturn. In this case, the local court that complies with the decision to overturn is obliged to take action and make a decision in accordance with the reversal.In that case, it is inappropriate for the court to reach a conclusion in writing on the grounds that the transaction facility should be decided in accordance with the decision to overturn, while the execution directorate has made the transaction and there is no subject left.
CONCLUSION: With the acceptance of the creditor’s appeals, the court’s decision was based on the reasons written above in 366 of the HR Committee and 428 of the HRC. in accordance with the articles, it was unanimously decided on 20/06/2016 to change it, to return the fee received in advance if requested, to correct the decision within 10 days from the notification of the decision, so that the way to correct the decision is open.
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