TC
Supreme
Court
Decision No: 9285/2014
Decision No: 2014/11622
Date: 21.4.2014
If the forgery of the document subject to enforcement is alleged before or after the enforcement is completed, it does not result in the suspension of enforcement pursuant to Article 209 of the Code of Civil Procedure. The aforementioned provision stipulates that the document cannot serve as a basis for any proceedings in general courts, in other words, it cannot be used as evidence and cannot affect enforcement proceedings. In the present case, it is understood that the Commercial Court of First Instance decided to reject the request to suspend the enforcement of the provisional measure decision that is the subject of the lawsuit. In this case, the court must accept the complaint.
PROCEDURE: Following the court decision dated and numbered above, the creditor appealed for the files related to this audit to be sent from the location of the incident to the office for the preparation of an audit report and for the case to be brought before the judge. After reading and examining all the documents in the file, the nature of the case was discussed, resulting in the following:
DECISION: The creditor initiated enforcement proceedings against the debtors through attachment specific to foreign currency instruments such as bonds, the proceedings became final, and the debtors H. …
Enforcement and bankruptcy law is the procedural law governing enforcement and bankruptcy proceedings. The purpose of this branch of law is to eliminate the difficulties creditors may face in pursuing their claims against debtors or in dealing with third parties.
On the other hand, it is to resort to legal remedies against the debtor, to protect the rights of third parties involved in the proceedings, and to prevent the violation of human rights and freedoms. The most important source of enforcement and bankruptcy law is the Enforcement and Bankruptcy Law, which regulates the procedural rules that must be applied from enforcement and bankruptcy proceedings to collection.
In cases where there is no provision in the Code of Civil Procedure No. 6100, the Code of Enforcement and Bankruptcy may be applied if there is an explicit reference in the Code of Enforcement and Bankruptcy (such as IİK 50, 68/a-4) or if there is no conflict with the specific or general provisions of this law (mandatory joinder of parties). In light of these principles, the effect of Article 209/1 of the Code of Civil Procedure on enforcement proceedings other than those involving narcotics should be assessed. According to this article, “when the writing or signature on an ordinary promissory note is rejected, that note cannot be used as a basis for any proceedings until a decision is made on the matter.” There is no provision in the Enforcement and Bankruptcy Code stating that this article must be applied in enforcement proceedings.
In enforcement proceedings specific to foreign exchange bills, an objection to the signature on the bill of exchange subject to enforcement cannot be applied pursuant to Article 170 of the IFC, as the claim of rejection of the signature is specifically regulated in Article 209 of the SPK. Pursuant to Article 170/1 of the EBC, an objection to a signature does not suspend enforcement proceedings other than sale. However, the enforcement court may decide to temporarily suspend proceedings until a decision is made on the objection (EBC 170/2).
On the other hand, if the claim is based on a reason other than a signature objection (in the article), since there is no provision in the Enforcement and Bankruptcy Law, our Chamber will refer to Article 209 of the Code of Civil Procedure. While we were of the opinion that Article 169/a of the Enforcement and Bankruptcy Law should be applied, a change in case law was subsequently made, and it was understood that the claim regarding the document was in the nature of an objection to the debt and that this matter was regulated in Article 169/a of the Enforcement and Bankruptcy Law and Article 209 of the Code of Civil Procedure. In this regard, the view that the article is not applicable has been adopted.
Since the enforcement court, by applying the special procedural rules set forth in the Enforcement and Bankruptcy Law, reaches a final decision regarding enforcement law on the objections and complaints submitted to it, the decisions of the said court do not, as a rule, constitute a final decision in a substantive sense. Therefore, when examining an objection to the debt or signature, it cannot decide whether enforcement should be suspended in the general courts regarding the claim, nor can it decide whether enforcement should be suspended. Only the former can make a final decision on the suspension of enforcement by the enforcement court until a decision is made on the merits of the appeal, in accordance with Article 169/a-2. The fact that the enforcement court has ruled on the claim to be enforced does not prevent a lawsuit from being filed in the general courts regarding the same claim.
If it is a case covered by Article 72 of the Enforcement and Bankruptcy Code, enforcement proceedings may be suspended by a provisional measure decision obtained from the court in accordance with the procedure set out in that article.
In cases of forgery, complaints filed with the public prosecutor’s office and lawsuits filed in criminal courts for the same reason do not automatically suspend enforcement proceedings, and pending cases cannot be heard. However, enforcement proceedings may be suspended if the public prosecutor’s office or criminal court issues a precautionary measure decision.
According to the principles and rules explained above, the allegation of forgery of the bill of exchange subject to enforcement, before or after the completion of enforcement, is made in accordance with Article 209 of the Code of Civil Procedure. In accordance with the article, this does not result in the suspension of enforcement. The provision in question stipulates that the document cannot serve as a basis for any proceedings in general courts, in other words, it cannot be used as evidence and has no effect on enforcement proceedings.
In the specific case, it is understood that the Commercial Court of First Instance decided to reject the request to suspend the enforcement of the provisional measure decision subject to the case.
In this case, since it was alleged that the basis for enforcement in the Denizli 5th Criminal Court of First Instance and the Denizli 3rd Criminal Court of First Instance was document forgery, the ruling rejecting the complaint on the grounds that there was no irregularity in the suspension of enforcement proceedings pursuant to Article 209 of the Code of Civil Procedure is invalid.
CONCLUSION: The court’s decision to accept the creditor’s objections for the reasons stated above is in accordance with Articles 366 and 428 of the Enforcement and Bankruptcy Law.Pursuant to the provisions, it was decided by majority vote on April 21, 2014, that the prepaid fee shall be refunded upon request, with the right to appeal the decision within 10 days of its notification.