TC. SUPREME
8. Legal Department Main No: 2016/22021
Decision No :2017/3112
Decision Date : 07.03.2017
SUPREME COURT DECISION
COURT : Court of First Instance
Case type : deed of cancellation of Registration and claims between the parties, and the above-described case in the trial Court, the verdict and the decision was made and lack of jurisdiction an appeal by the plaintiff’s attorney defendant’s Attorney, upon dairec file is examined and duly noted.
decision
The plaintiff’s attorney, the plaintiff’s lawsuit … the … name… of the subject on behalf of the defendant no independent department bought the parcel, the defendant’s obligation of loyalty that violates the defendant from violating the law in accordance Tbk 295/2 arising from the obligation of registration of title deed in terms of rotation from donations by specifying that occurred with the cancellation of the registration on behalf of the plaintiff is not possible if the value of the immovable at the date of the case from the defendant’s decision to demand and the collection has prosecuted.
The defendant … his attorney has defended the dismissal of the case.
The court decided to dismiss the case on the grounds that the immovable property was purchased on behalf of the defendant one day after the marriage date, that the case is a property dispute within the marriage union, and that the Family Court is obliged to depend on the case. The verdict was appealed by the plaintiff’s attorney and the defendant’s attorney.
All were examined with file scope; the petition of the plaintiff of the defendant’s clearly violating the law, in accordance Tbk 295/2 from donations from the obligation arising from rotation causes rotation occurred in terms of the deed of donation based on noting that if it is not possible to cancel it and have requested that registration will take understood, although it is based on the general provisions of the plaintiff’s claim (CODE m. 285 et seq.) and is not in the nature of a demand within the scope of the liquidation of the property regime.
Then, the demand is TMK 2. since it does not originate from the book, the Family Court is not in charge, and the place of settlement of the dispute is 2 of the HMK No. 6100.it is the Court of First Instance to be determined in accordance with the article. Since the duty is a condition of the case related to public order (HMK m. 114/ c) Even if it is not put forward as a claim and defense, it is considered ex officio by the court at every stage of the trial (art. 115/1). While the court should have tried the case in the Civil Court of First Instance within the framework of the general provisions, the decision to dismiss on the grounds that the Family Court was in charge was contrary to the procedure and the law and required an annulment.
CONCLUSION: For the reasons shown above, the appealed judgment is Provisional 3 of the CCP No. 6100. article 428 of the HUMK No. 1086. in accordance with Article 440 / III-1, 2, 3 and 4 of the HUMK. it was unanimously decided on 07.03.2017 that the way to correct the decision against the announcement was closed in accordance with the provisions and that the advance fee was returned to the plaintiff and the defendant who appealed
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