TC
High
General Assembly of Law
Original No.: 2010/0
Decision No:2010/138
K. Date: 10.3.2010
(“….The plaintiff claimed that the defendant had not paid his debt to him and objected to the enforcement proceedings filed, asking for a decision to collect compensation at the rate of 40%.
The defendant requested that the case be dismissed.
Upon acceptance of the case, the court stated that after the announcement of the verdict, the plaintiff had not learned the defendant’s surname Dalkic according to the population register, despite the final decision of the defendant subject to enforcement proceedings, Dalkic was executed despite placing a bet because he could not ask for the correction of the surname; the court decided to reject the request on the grounds of the defendant’s internal requests and the fact that the defendant’s surname was displayed in the petition as Dalkic and thus the amount was small; the verdict was appealed by the plaintiff.
Although the judge cannot make a final decision to change the main provision and eliminate the last provision, 455 of the HUMK. if there are ambiguous and ambiguous provisions in the decision made in accordance with the provision of the article, it may decide to correct this ambiguity and ambiguity in such a way that it is eliminated. In order to clarify this suspicious issue, the plaintiff also requested that the defendant’s real surname be corrected in this way, betting that it was actually Dalkic and not Dalkic in the concession petition.
As a result, the court must determine whether the defendant’s real surname has been investigated, whether this surname used belongs to two separate people or to the defendant, and decide according to its result. The fact that the court has made a written decision in this direction without conducting any examination and research is contrary to the procedure and the law and should be overturned.”)
Despite the violation of the justification and the return of the file to its place, the court resisted the previous decision at the end of the retrial.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in the examination conducted by the General Assembly of Law, and the document in the file was read, the following issue was discussed:
The case relates to the request for cancellation of the appeal, which is incorrect in the court’s decision.
the defendant’s surname has been requested to be changed.
From the decision on the recommendation; the plaintiff is the defendant K.it is understood that the defendant wants to cancel the appeal against the enforcement proceedings filed against the diver; the court has decided to accept the case, the decision has been finalized without objection; the defendant’s name is written as Dalkic in the title of the final decision.
The plaintiff’s attorney declared that during the follow-up for the execution of the final decision, they learned that the defendant’s surname in the population records was Dalkic, and demanded concessions on the grounds that the execution of the decision was not possible due to the incorrect surname in the court decision.
decision of the local court to reject the request due to the conclusion of the case in accordance with the enforcement proceedings and the inclusion of Dalgıç’s surname in the petition was overturned by the Special Chamber on the grounds described above.
The court decided to resist the previous decision on the grounds that there had been no material error, there was no contradiction in the judgment and the execution of the judgment had been initiated, and the plaintiff’s attorney appealed the judgment.
The dispute is the surname of the defendant and 455 of the CMB. it is about whether the decision is ambiguous in terms of the amendment of the article, and it is collected at the points where the conditions necessary for the implementation of the article are met.
455 of the Code of Civil Procedure No. 1086. the article contains the provision “If the judgment is vague and amorphous or contains separate paragraphs, each of the parties may request the acceptance of divine providence and the salvation of the tenaciousness until the execution of the judgment”.
Explanation of the provision mentioned in the said article (tavzih) is a legal way to reveal the true meaning of the provision if it is difficult to understand the provision (vague) or its provisions are not clearly understood and contradict (contradict each other).
The judgment given by way of repentance cannot be limited, extended or changed. It is not possible to change the decision made unless the extradition of the trial has been decided or the decision has been appealed or overturned. The amendment of the provisions cannot be considered as an exception to this. Here, the judge has the duty to reveal the truth in order to prevent the judgment from being understood in any other way.
The advice, as a rule, is only about the provision clause. It is impossible to reach a compromise to explain the justification of the judgment. However, if there is a contradiction between the article of the Decrees and the justification, a compromise may be reached to resolve this contradiction (SSI dated 14.06.1967 and numbered 1967/9-462 E: 300 K).Communiqué No.)
A settlement method can also be applied against such decisions of the Court of Cassation. Although the plaintiff who claims that the judgment has been changed by the decision of the Supreme Court may apply for appeal, the decisions made by the Supreme Court regarding the decision of the Supreme Court cannot be appealed to the General Assembly by appeal (YHGK 15.03.1969 day and 1969/2-466 E.178 K .Communiqué No.)
There is no need to wait for the finalization of the provision in order to resort to the way of reconciliation. A settlement may also be requested for cases that have not been finalized until the execution (fulfillment) of the judgment. However, the appeal period does not stop with the settlement request. After the execution of the verdict, it may be requested to reconcile the verdict until the verdict is fully executed. The judgment is accepted only by the court that issued it.
The judge decided through provision forgotten about the demands of the provisions in the amount you can take. Forgotten when making such a decision attorneys ‘ fees), or can’t decide on a compromise, providing the influx of interest, and are not aware of this provision. Likewise, the conflict between short-reasoned decision with the decision cannot be resolved definitively.
The result of all these reports, the amount of the provision is finalized by way of limiting, expansion, and whether it is possible to change. (Prof. Dr. Baki the dry Law, Civil Procedure, sixth edition 2001, Vol 5, page 5270 et al.)
When the samut case is examined in the light of the above explanations, it is clear that the execution of the sentence cannot be carried out due to confusion in the surname of the accused, the court does not have the authority to execute the sentence, and the decision made is ambiguous.
The court; the person whose name and date of birth are written in the power of attorney, petition, decision, especially the father’s name and date of birth in the land registry records; whether he is the same person as the person in the population register, whether these names indicate the same person, should be decided according to the result of the examination, but since the request for rejection of the suspicious provision cannot be executed in its current form, it is not in accordance with the procedure and the law to decide.
While the court’s decision overturning the same points should be followed, it is against the procedure and the law to resist the previous decision to reject the bet and file a lawsuit on the grounds that no material error has been made.
Therefore, the decision to resist must be overturned.
CONCLUSION: With the acceptance of the plaintiff’s attorney’s objections, the decision to resist the decision regarding the disruption of the Private Office was made, and for the reasons shown above, the CMB’s 429. According to the amendment article, it was decided unanimously to cancel it on 10.03.2010.