Eviction Commitment in terms of Heirs
TC
JUDGMENT
12. PRIMARY COURT
E.2016/32803
K.2017/80
T.5.1.2017
LAWSUIT :
Upon the reversal of the decision rendered by the court as a result of the lawsuit filed by our Chamber between the parties, the case file regarding the decision to resist, the date and number of which is written above, was sent to our Chamber in accordance with the provisional article 4/. 1 added to the Code of Criminal Procedure No. 6100 with Article 45 of the Law No. 6763, which entered into force on 02.12.2016, and after listening to the report prepared by the Review Judge… and all documents in the file were read, and the necessity of the matter was discussed and evaluated when examined:
DECISION :
Pursuant to the lease agreement signed between the deceased and …, some of the heirs filed a lawsuit against … regarding the “eviction decision in case the lease period of the immovable leased with a written agreement expires” and the creditor also applied to this lawsuit. The execution court ruled that the initiation of the proceedings pursuant to Article 272 of the EBL without an eviction commitment was unlawful.
Upon the appeal of the decision, it was seen that the court decided to accept the request on the grounds that the initiation of the procedure according to Article 272 of the EBL without an eviction commitment constituted a violation of the law, and upon the objection, the court decided to accept the request. In the decision, it has been ruled by our Chamber that the creditor’s application is in the nature of an objection according to the form of the case, and that the application should be made to the enforcement directorate pursuant to EBL Article 274. It is not correct to consider the application as a complaint and to decide on the annulment of the proceedings, and the court resisted in its first decision.
Pursuant to Article 640 of the TCC, it is obligatory for the heirs to act together to file a lawsuit or initiate a lawsuit for a right related to the inheritance while the inheritance partnership continues. In other words, it is not possible for the heirs or some of the heirs to file a lawsuit or initiate enforcement proceedings for the right remaining within the scope of the inheritance, even if a will has been made to them, without ensuring the execution of the will. Therefore, if the inheritance company is to conduct the lawsuit, the heirs must act together and there is a compulsory friendship between the heirs. This issue is a matter of public order and is taken into consideration by the court ex officio.
In this case, since it is not possible to carry out the lawsuit since all heirs must participate in the lawsuit, the court should decide to cancel the lawsuit (according to the inheritance document numbered 2014/278-505 EK). The decision of Ankara 5th Civil Court of Peace (in the concrete case) and Ankara 4th Execution Law Court dated 31/03/2015 and numbered 2015/123 Esas-2015/228 and dated 31/03/2015 and numbered 2015/228 regarding the annulment of the proceedings should be given. It has been understood that it should be approved since the result is correct, but it has been reversed by our Chamber and it should be decided to approve the court decision (since it is correct as a result).
CONCLUSION :
1-) The decision of our Chamber dated 22/12/2015 and numbered 2015/22537 E.- 2015/32557 K. is reversed,
2-) By rejecting the appeal objections of the creditors, the decision of Ankara 4th Execution Civil Court dated 31/03/2015 and numbered 2015/123 Esas – 2015/228 was unanimously decided on 05/01/2017. The decision of Ankara 4th Execution Civil Court dated 31.03.2015, pursuant to Articles 366 of the EBL and 438 of the HUMK, the judgment (APPROVED), with the way of correction of the decision open within 10 days from the notification.
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