TC
judgment
8. law office
E. 2017/13162
K. 2017/10909
T. 18.9.2017
VALIDITY OF THE BANKRUPTCY CLAIM (In the Tenant Creditor’s Eviction Follow-up Request, in addition to paying the rental price, 269/1 of the BIK. according to the article, it is mandatory to request the eviction of the tenant. 269/1/ Thus, the lessor will combine the eviction proceedings with the follow–up through general foreclosure for the rental price – Example 7 of the Follow-up Request. the Request for Evacuation should be written in the space opposite the article/ Also 9. in the article, this request should be repeated again in the form of foreclosure and eviction)
PAYING Paying OF THE TENANT (13 Sample Payment Orders Based on a Follow–Up Request Cannot be Sent to the Debtor / Even If Sent, the Creditor Cannot Request the Eviction of the Real Estate from the Enforcement Court Based on Such a Payment Order, Since the Review of the Follow-Up Request in the Execution Follow-Up File Shows that There is No Eviction Request in the Request, the Enforcement Directorate Cannot Send/The Creditor Cannot Request the Eviction of the Real Estate Based on Such a Payment Order – The Court Will Reject the Eviction Case Filed on the Basis of a Follow-Up Request Without an Eviction Request)
THE EVICTION CASE BASED ON THE BANKRUPTCY CONDITION THAT THERE IS NO EVICTION REQUEST (Enforcement Directorate’s 13. Paying Paid according to the Sample Payment Order, the Eviction Case filed on the basis of the enforcement proceedings without the eviction request cannot be sent to the debtor / Even if it is sent, the creditor cannot request the eviction of the real estate from the Enforcement Court on the basis of such a payment order, since the Eviction Case filed on the basis of the enforcement proceedings without the eviction request must be rejected)
2004/m.269/1
SUMMARY:
The case is related to the request for the removal of the objections of the defendant’s guarantors and the eviction of the tenant. Records that must be submitted to the follow-up request in order for the follow-up request to be valid and for the enforcement office to send a pay order to the debtor based on this are called the terms of the follow-up request.
The creditor who gives the lease in the request for eviction without a decision, in addition to paying the rent, is required to comply with Article 269/1 of the IIK. in accordance with the article, he must also request the eviction of the tenant. Thus, the lessor combines the follow-up of eviction with the follow-up through general foreclosure related to the rental price. The eviction request should be written in the space opposite section 7 of the follow-up request example. In addition, in section 9, this request must be repeated in the form of withdrawal and evacuation.
From the examination of the follow-up request in the sample execution follow-up file found in the file, it can be seen that the request does not include the release request. Based on the follow-up without an eviction request, it is not possible for the enforcement directorate to send 13 sample pay orders to the debtor. The payee cannot request the eviction of the immovable property from the Enforcement Court based on such a payment order. In this case, it is wrong for the court to decide to dismiss the eviction case filed on a follow-up request without a request for eviction.
CASE:
At the end of the trial between the parties in the above-mentioned case, the Court decided to accept the case and the file was examined and evaluated by the Department upon the appeal of the defendant’s attorneys’ Decrees:
DECISION :
The case relates to the requests for the removal of the objections of the defendant guarantors and the eviction of the tenant Melissa Agriculture and Agricultural Products Animal Husbandry … Ticaret Limited Şirketi. The court decided to accept the case and the decision was appealed by the defendants.
1-) After all the defendants filed their petition dated 02.03.2015 notifying that they filed an appeal against the decision dated 02.03.2015, the defendant guarantors filed a waiver petition notifying that they had abandoned the appeal request with the petition dated 13.04.2015 and filed another petition notifying that they had abandoned the appeal request on the same day. Since the defendants’ waiver of the appeal is a unilateral statement of will, and since the waiver of this waiver is not possible, the petitions of the defendants’ sureties for appeal have been rejected due to the waiver,
2-) As for the appeal of the defendant tenant company representative;
Paying payee’s attorney, as a result of the enforcement proceedings initiated for the collection of the allegedly unpaid rent prices on 23.06.2014, the defendant tenant did not object to the payment order, the defendant tenant’s eviction on the basis of the finalized enforcement proceedings requested that the Enforcement Court decide on the eviction of the defendant tenant.
The records that must be submitted to the follow-up request in order for the follow-up request to be valid and for the enforcement office to send a pay order to the debtor based on this are called the terms of the follow-up request. In the request for follow-up of eviction without a warrant, the creditor paying the lease, in addition to paying the rent, is subject to Article 269/1 of the Enforcement Code. in accordance with the article, he must also request the eviction of the tenant. Thus, the lessor combines the follow-up of eviction with the follow-up through general foreclosure related to the rent. The eviction request should be written in the space opposite section 7 of the follow-up request example. In addition, this request should be repeated in section 9 as a withdrawal and evacuation.
From the examination of the follow-up request in the sample execution follow-up file found in the file, it can be seen that the release request is not included in the request. The enforcement directorate cannot send 13 sample pay orders to the debtor based on the follow-up request without a request for release. The creditor cannot request the eviction of the immovable property from the Enforcement Court based on such a pay order. In this case, while the court should decide to reject the eviction case filed on the basis of a follow-up request without a request for eviction, it is not correct to issue an eviction order with written justification and the decision should be overturned.
CONCLUSION : For the reasons written in the subparagraph (2) above, the decision to overturn the decision by accepting the appeal requests of the defendant tenant’s attorney, within 10 days from the notification of the parties to the decision of the General Assembly of Civil Chambers of the Supreme Court of Appeals 366/3. it was decided unanimously on 18.09.2017 that they could request a correction of the decision in accordance with the article and that the advance payment would be returned to the plaintiff if requested.
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