Before initiating enforcement proceedings, it is not mandatory for the creditor’s representative to submit a freelance invoice regarding the payment of the debt subject to the judgment, in addition to the written application to the administration. If payment is not made within 30 days from the date of the written application, enforcement proceedings may be initiated.
12th Chamber of the Court of Appeals 2018/6351 E., 2019/4901 K.
“Case Law Text”
COURT: Enforcement Court
Upon the creditor’s request for an appeal review within the specified period regarding the court decision dated and numbered above, the relevant file was sent to the chamber by the local court. After hearing the report prepared by the Review Judge for the case file and reading and reviewing all the documents in the file, the matter was discussed and decided:
The representative of the debtor, who is the complainant, applied to the enforcement court, stating that the representative of the creditor requested payment of the debt in accordance with Article 28/2 of Law No. 2577 and applied to the Ministry with a petition dated 17/02/2016.
However, since the petition did not include the necessary documents for payment and the figures in the petition did not match the administrative court decision, a second petition was submitted to the Ministry on March 21, 2016, to remedy the deficiencies and complete the missing documents. stated that, pursuant to Article 28 of the Administrative Litigation Procedure Law, payment must be made within one month, and that the creditor’s representative did not comply with these deadlines and initiated enforcement proceedings on March 21, 2016, and therefore requested the cancellation of the enforcement proceedings.
The court determined that the creditor’s representative’s first application was dated February 17, 2016 (the date it reached the administration), but that the missing documents were submitted to the institution by the creditor’s representative on March 21, 2016. It was seen that the enforcement proceedings were canceled because the creditor’s representative initiated the proceedings on March 21, 2016, without waiting for the 30-day statutory period stipulated in Article 28/2 of the Administrative Litigation Procedure Law.
Article 28/2 of the Administrative Procedure Law No. 2577, amended by Article 58 of Law No. 6352, states: “… In cases requiring the payment of a specific amount of money, the amount awarded, as well as the attorney’s fees and litigation costs awarded in all types of cases, shall be deposited into the bank account number notified in writing by the plaintiff or his/her representative to the defendant administration, in accordance with the procedures and principles specified in the first paragraph, as of the date of this notification. If payment is not made within the periods specified in the first paragraph, enforcement and execution procedures shall be carried out in accordance with the general provisions…”
According to the aforementioned article of the Law, it is sufficient to apply to the Administration in writing, and the fact that this application has been made is not a matter of dispute between the parties. The dispute concerns whether it is mandatory for the creditor’s representative to present a freelance invoice in addition to the written application for the payment of the debt subject to the judgment. In this context, since there is no specific provision in Article 28 of Law No. 2577, there is no need to wait for the presentation of the invoice in question for the enforcement of the judgment.
In this case, the debtor’s first application date to the administration was February 17, 2016, and since the administration’s 30-day legal payment period passed between this date and the enforcement date of March 21, 2016, the court should have decided to dismiss the complaint, and the decision to cancel the enforcement is erroneous.
CONCLUSION:
The creditor’s appeal is accepted, and the court’s decision is overturned for the reasons stated above. Pursuant to Articles 366 and 428 of the Code of Civil Procedure and Article 428 of the Code of Civil Procedure, the advance fee shall be refunded upon request, and an appeal may be filed within 10 days of notification of the decision. The decision was made unanimously on March 20, 2019.