Example 14 Cancellation of Proceedings by Objecting to Evacuation Decision and Evacuation Under Pressure
TC
JUDGMENT
12. PRIMARY COURT
E.2016/4312
K.2016/21715
T.17.10.2016
CASE :
Upon the complainant’s request to examine the above dated and numbered Court of Appeal decision within the time limit, the file on this matter was sent from the neighborhood to the directorate, and after listening to the report prepared by the examination committee, after all the documents in the file for the Judge… case file were read and examined, the necessity of the matter was discussed and evaluated:
DECISION :
In the application made by the complainant tenant to the enforcement court, it was understood that the complainant tenant objected to the sample 14 eviction decision and the eviction commitment taken under pressure and requested the cancellation of the transaction, and the court decided to reject it. Filing a complaint on the grounds that the complainant’s objection is not one of the reasons for objection that can be asserted within the scope of Article 272 of the EBL and that the decision of the execution directorate to reject the objection is legally correct. conclusion.
In the concrete case, the creditor initiated an execution proceeding without judgment upon the request for eviction of the immovable leased with a written lease agreement due to the expiration of the lease period and upon the notification of the eviction decision number 14 to the defendant. On 13.11.2015, the debtor and on 18.11.2015, the debtor filed a petition of objection to the enforcement directorate. The debtor filed a petition of objection to the enforcement directorate on 18.11.2015, claiming that the addresses of the immovable subject to the eviction decision and the immovable specified in the eviction undertaking are different and that the eviction undertaking was under duress, and the enforcement directorate decided to reject the request on 20.11.2015 on the grounds that the objection authority is the enforcement court.
Article 274/1 of the EBL reads as follows: “The tenant who wishes to object shall notify the enforcement office with a petition or orally within seven days from the notification of the evacuation decision. Such objection stops the who wishes to object shall notify the enforcement office with a petition or orally within seven days from the notification of the who wishes to object shall notify the enforcement office with a petition or orally within seven days from the notification of thewho wishes to object shall notify the enforcement office with a petition or orally within seven days from the notification of the evacuation process”.
According to the aforementioned article of the law; the objection must be notified to the enforcement office within seven days from the notification of the eviction decision. Pursuant to this provision, if the debtor objects to the eviction decision within the time limit, the enforcement proceedings must be stopped by the enforcement office. The contrary decision is in the nature of non-fulfillment of the right and may be subject to complaint without being subject to the time limit pursuant to Article 16/2 of the EBL.
Pursuant to Article 33 of the Code of Criminal Procedure, legal advice belongs to the judge. The judge is bound only by the material facts and consequential claims put forward by the parties in a case and not by the provisions and recommendations of the law. He is obliged to apply the law ex officio and to decide on the resulting claims in the claim and defense (04.06.1958 and 15/6 CPC).
Although the complainant has requested the annulment of the transaction due to the invalidity of the eviction commitment, which is the basis of the case, due to its invalidity due to being taken under duress, in fact; As can be understood from the objection petition, the debtor’s reason for filing a complaint to the court is according to Article 274/2 of the EBL. Despite the debtor’s objection to the execution office in accordance with Article 274/2 of the Bankruptcy Law, the execution office should have decided to suspend the proceeding, but it was decided to reject the request on 20.11.2015 on the grounds that the objection authority is the execution court.
In this case, the court should accept the complainant’s request as a complaint against the decision of the enforcement directorate dated 20.11.2015 and decide that the enforcement directorate should be suspended by accepting the proceedings pursuant to Art. 274/1-2 of the BEK. Since the complainant objected to the procedure within the time limit, it is not correct to decide to reject the request on written grounds.
CONCLUSION :
Upon the acceptance of the complainant’s appeal objections, it was unanimously decided on 17/10/2016 in accordance with Articles 366 of the BEK and 428 of the HUMK for the reasons written above (CANCELED), the prepaid fee will be refunded upon request and the decision will be corrected within 10 days from the notification of the decision.
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