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judgment
GENERAL ASSEMBLY OF LAW
E. 2012/6-762
K. 2013/278
T. 27.2.2013
EVICTION PROCEEDINGS DUE TO COMMITMENT (BOTH PARTIES WILL BE INVITED ON THE REQUEST OF LIFTING THE OBJECTION – IT IS NOT APPROPRIATE TO MAKE A DECISION FROM THE HEARING)
SIMPLE TRIAL PROCEDURE (EVICTION CASE DUE TO COMMITMENT / REQUEST FOR REMOVAL OF OBJECTION – SIMPLE TRIAL PROCEDURE SHOULD BE APPLIED BY THE EXECUTION COURT / IF NECESSARY, THE RELEVANT PARTIES WILL BE CALLED TO THE HEARING)
THE NECESSITY OF THE HEARING (EVICTION CASE DUE TO COMMITMENT / REQUEST FOR REMOVAL OF OBJECTION – SIMPLE TRIAL PROCEDURE SHOULD BE APPLIED BY THE ENFORCEMENT COURT / THE NECESSITY OF SUMMONING THE RELEVANT PARTIES TO THE HEARING WHEN NECESSARY)
REQUEST TO REMOVE THE OBJECTION (EVICTION CASE DUE TO COMMITMENT – BOTH PARTIES WILL BE INVITED / THE DECISION FROM THE HEARING IS NOT APPROPRIATE) 2004/M.18, 70, 269
SUMMARY :
In the eviction case due to commitment, the Enforcement Court invites two people. the parties upon the request of removal of the objection.
It was stated that a simple trial procedure will be applied in the matters referred to the Executive Court. If the Executive Court deems it appropriate to hold a hearing, it calls the relevant parties to the hearing as soon as possible and makes the necessary decision even if they do not show up. While a hearing should be held and a decision should be made according to its outcome, it is not correct to make a decision without a hearing, as stated in the decision to overturn.
CASE :
At the end of the trial held due to the “Release due to commitment” case filed between the parties; the defendant’s lawyer, Izmir 6. Dec. The date of 06.01.2012 and 2012/3 E given by the Enforcement Civil Court regarding the rejection of the case., 2012/19 K . upon the request of the examination of the numbered decision, the decision was made. Supreme Court 6. Law Office dated 18.04.2012 and 2012/3253 E., numbered 2012/6153 K;
( … The dispute is subject to article 6100 of the CMB, which entered into force on 01.10.2011. according to 320/1, 269. in the case filed on the basis of the article, it is whether a decision will be made on the file without the parties being called to a hearing. and the continuation of the regulation on the eviction of leased real estate is included in the 10th section of the EBL No. 2004. As it is known, the enforcement courts are a special judicial body established for enforcement and bankruptcy affairs and have their own unique rules. While EBL states that a simple trial procedure will be applied in matters referred to the enforcement court, Article 70 of the same Law states that a simple trial procedure will be applied.
18, after the executive court, upon request, invited both parties. it is arranged that he will decide according to the provision of the article. On the other hand, Dec. 70 of the EBL, where article 269/d of the EBL is among the articles that should be applied. according to article 18, in cases where there is no provision for the removal of the objection. the provision regulated in the article is valid. on the contrary, the decision of the enforcement court whether there is a need for a hearing should not be applied in the case of parole without a warrant. The execution court is obliged to hold a hearing.
Article 320/1 of the CMK, which entered into force on 01.10.2011, provides that the court’s decision on the file without calling the parties to a hearing, if possible, should be interpreted and evaluated in terms of the relevant articles of the Law. The EBL and the enforcement law described above. First of all, it should be noted that according to the mentioned article, it must be legally possible for a decision to be made without a hearing. ther words, however, the law gives the judge discretion to make decisions about the file without a hearing, “injunction, injunction lien, etc.” in some cases, a decision can be made on the file. or 17-18 of the EBL. in the cases of complaints specified in the articles.
In cases where the law explicitly orders a trial to be held by opening a hearing, a decision cannot be made on file. In the meantime, the 27th Dec regulating the CMK’s right to be heard. article 36 of the Constitution of the Republic of Turkey, which regulates the freedom to seek rights, Decrees. article 6 of the European Convention on Human Rights on the right to a fair trial. the substance should also be taken into account. it should also be taken into account.
Given the provisions of the law described above and the purpose pursued by the legislator, it cannot be said that the provisions in the LCP, which is a more specific law, have been changed by the CCP, which is a more general law. In practice, it is accepted that the provisions contained in the CMC will not be applied in the EBL unless an explicit reference is made. For these reasons, while the trial should be held by opening a hearing, it is contrary to procedure and law to make a decision on documents by making an error in the evaluation,)
At the end of the retrial, which was held after the file was returned to its place with justification; the court resisted the previous decision.
The decision of the General Assembly of Civil Law was examined, the necessity was discussed after it was understood that an objection was filed during its time and the documents in the file were read:
DECISION :
The case relates to the request for release due to commitment.
The plaintiff’s attorney claimed that the defendant, who is the tenants, agreed and committed to evict the real estate without any notice on 17.10.2011 with the eviction commitment dated 29.09.2011, but did not evict the real estate; he requested the eviction of the defendant from the real estate.
Court board stated that the plaintiff creditors initiated proceedings against the defendant debtor company, sent an eviction order with sample number 14, the basis of the proceedings was an eviction commitment letter dated 17.10.2011, and the eviction decision was notified to the debtor company on 17.11. .in 2011, the representative of the debtor company objected to the signatures and articles in the discharge commitment letter with a petition dated 22.11.2011, the objection was accepted on 02.01.2012 and 275 of the Enforcement and Bankruptcy Code. in accordance with the article, the pursuit has been stopped.
Law No. 2004. pursuant to Article 275 of the Execution and Bankruptcy Law No. 2004, in case of an objection to the eviction decision, the lessor may request the removal of the objection and it is possible to remove the objection if the eviction request is realized.
On the basis of a contract officially issued by a notary or dated or certified by his signature, but because the eviction decision was challenged in the concrete case, the plaintiffs must request the removal of the objection and the eviction of the defendant, but they cannot file an eviction case directly without requesting the removal of the objection; In addition, since the signatures and articles contained in the eviction commitment have been objected to with an appeal petition and the plaintiff does not have a notarized eviction commitment or a date and signature accepted eviction commitment, it has been decided to dismiss the case related to the plaintiff’s eviction commitment. documents.
Upon the objection of the defendant’s lawyer, the decision was overturned by the Special Chamber on the grounds mentioned above. The Local Court resisted on previous grounds and the decision to resist was appealed by the defendant’s lawyer.
Before proceeding to the merits of the case, the Local Court decided to dismiss the case by reviewing the file on the plaintiff’s request for release without opening a hearing in the case, without notifying the defendant, and upon appeal of the decision by the defendant. After the Special Chamber overturned the decision on the grounds that the case could not be decided without a hearing, the Local Court set the date of the hearing and invited the parties to the hearing.
As a result of the actual compliance with the decision to overturn, a new decision was formed, and accordingly, whether the appeal review would be conducted by the Special Chamber or by the General Assembly of Civil Chambers was discussed as a preliminary issue, and as a result, the court No. 1086 HUMK m. According to 439/3, he did not fulfill the trial phase during the trial and after the disruption.
Article of the Law on Civil Procedure No. 1086. according to 439/3, after the reversal, the Court will decide whether to comply with the Supreme Court’s reversal decision after calling and hearing the parties to the hearing and after the parties are called to the hearing to ask what they have to say against the reversal as required by law. It was unanimously accepted that this situation was not in the nature of actual compliance with the decision to overturn and there were no preliminary considerations.
As for the merits of the case, the plaintiff creditors are SD, NK, DD-I. D., debtor T. Lpg etc. Şti. he initiated enforcement proceedings against him on 31.10.2011. 269.et al. in accordance with the articles Izmir 27. With the enforcement file numbered 2011/20569 of the Enforcement Directorate. according to the Enforcement and Bankruptcy Law No. 2004, K. In the request for enforcement proceedings.
Dirik District Victory Cad. 13/B Empty evacuation and delivery of real estate at Bornova/Izmir, written lease agreement A written lease agreement for 60 months from 1.2.2008, a written lease agreement for 60 months from 1.2.2008, a written lease agreement based on an eviction commitment dated 17.10.2011. the eviction commitment dated 2011, it was understood that the eviction order with sample number 14 dated 31.10.2011 of the real estate leased by a written contract was sent to the defendant company, the debtor was notified on 17.11.2011, the debtor company objected. the case was stopped on 02.01.2012 with the claim that the eviction commitment based on the petition dated 22.11.2011 was fake, and the signatures and writings did not belong to the company representatives.
The defendant appealed the decision with the claims that the petition was not notified to them, that the case was rejected on the merits before the procedural procedures were completed, and that no proxy fee was given in his favor.
As it is known, Articles 269 and its continuation of the Execution and Bankruptcy Law (EBL) No. 2004 are applied to the eviction of leased real estate, and articles to be applied comparably are regulated in Article 269/d of the same law. this is the case. The 70th of the EBL. the article is also among the Decrees that will be applied by comparison.
The 70th of the EBL. according to Article 18, the Executive Court invites both parties upon the request of lifting the objection and 18. he makes his decision according to the article provision.
18 Of the Enforcement Law. it is also stated in the article that a simple trial procedure will be applied in matters referred to the Executive Court. If the Executive Court deems it appropriate to hold a hearing, it calls the interested parties to the hearing as soon as possible and makes the necessary decision even if they do not show up.
Therefore, the court’s EBL 70. although he should have held a hearing until article 269 /d of the article and decided according to the result, it is not correct to make a written decision without a hearing, as stated in the overturning decision.
Resisting the previous decision for the reasons explained is contrary to procedure and law, and the decision to overturn issued by the General Assembly of Legal Departments must be followed for the reasons stated in the decision of the Special Department to overturn. Therefore, the decision to resist must be reversed.
CONCLUSION:
429 of the Civil Procedure Code No. 1086 applied with reference to “Provisional Article 3” with the acceptance of the appeals of the defendant’s lawyer. rejection of the decision to resist the decision in accordance with the article. It was added to the Law on Civil Procedure No. 6100 by Article 30 of Law No. 6217 for the reasons shown in the decision to dissolve the Special Chamber. at the second meeting held on 27.02.2013, it was unanimously decided to refund the pre-appeal fee to the depositor in accordance with Article 366/III of the Execution and Bankruptcy Law No. 2004 for the decision correction method, if requested. it will be open within 10 days from the notification.
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