Summary:
The case concerns a complaint regarding the cancellation of a tender, and the court’s decision to dismiss the complaint was served on the complainant’s attorney at the hearing held on November 30, 2017. The complainant filed an appeal petition against the relevant decision on December 6, 2017; however, it was found that a reasoned petition was not submitted within the 10-day statutory period. Although a petition was filed with the Regional Court regarding the appeal period (time limit), no assessment was made regarding a violation of public order in Decision No. 352 of the Code of Civil Procedure. Pursuant to the provision, the decision rejecting the appeal petition is incorrect and must be reversed.
Turkish Supreme Court, 12th Civil Chamber, Case No. 2018/11290, Decision No. 2018/12485, Date: November 29, 2018
Court: … Regional Court, 22nd Civil Division
Regional Court In the review referenced by the above date and number, the relevant case files were submitted to the chamber within the timeframe requested by the court’s decision, and were held pending an audit report upon a judge’s request; all documents in the file were read and analyzed, and the nature of the matter in question was considered:
September 26, In accordance with Law No. 5235 of 2004 on the Establishment, Duties, and Powers of First Instance and Regional Courts of Justice, Law No. 5311 of March 18, 2005, amended the provisions of the 2004 Enforcement and Bankruptcy Law regarding appeals and corrections of decisions, and was incorporated into the Enforcement and Bankruptcy Law. According to the article, the provisions of Law No. 5311 apply to decisions rendered after July 20, 2016, when the Regional Courts began their operations.
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The conclusion of the debtor’s auction and the complaint to the enforcement court, … 1. The decisions of the Enforcement Law Court dated November 30, 2017, and numbered 2017/883 E. – 2017/114 K.; 22. Regional Court of Appeal, Civil Division, dated March 23, 2018, Case No. 2018/393 E. – 2018/686 K., and the decisions under Articles 342/2-e, 352, and 346 of the Code of Civil Procedure. It is understood that these decisions were rendered dismissing the appeal.
Article 342(3) of the Civil Procedure Code No. 6100 states: “If the objection petition contains the petitioner’s identity and signature, as well as sufficient records to identify the relevant decision, the necessary review shall be conducted under Article 355 of the same Code, even if no other grounds exist.”
Article 355 of the same Code states:
“The review is limited to the grounds stated in the objection. However, if the regional court deems this contrary to public order, it shall comply with it.” Article 352/1 of the same Code specifies that the necessary decision shall not be rendered if the conditions for the application are not met or if no grounds for the application are provided.
The case concerns a complaint regarding the cancellation of a tender, and the court’s decision to dismiss the complaint was served to the complainant’s attorney at the hearing held on November 30, 2017. The complainant filed an objection to the relevant decision on December 6, 2017; however, despite the reasoned decision being communicated on May 18, 2018, a reasoned objection was not filed within the 10-day statutory period.
In this situation, the Regional Court is required, as stipulated in Articles 352 and 355 of the Code of Civil Procedure (HMK) under Articles 342/2/e and 342/3, to review and render a decision based on the outcome of the appeal request—without rejecting the appeal petition—limited to matters of public order. Pursuant to Article 353/1-b-1 of the HMK, the court decision under review on appeal must also be examined on its merits with regard to the review of violations of public order. According to the provision, a decision must be rendered regarding the dismissal of the appeal on its merits.
In this case, although a petition was filed with the Regional Court regarding the appeal period (time limit), pursuant to Article 352 of the HMK, the first-instance court’s decision did not assess the violation of public order. According to the provision, the decision to dismiss the appeal is incorrect, and the decision must be reversed for the stated reasons.
Conclusion:
… The decision of the 22nd Civil Chamber of the Regional Court dated March 23, 2018, and numbered 2018/393 E. – 2018/686 K, has been amended by Law No. 364/2 and Decision No. 5311 for the reasons stated above. Pursuant to Article 373/2 of the Code of Civil Procedure No. 6100, regarding the matter that must be applied by referring to the relevant provision, it was decided by unanimous vote on November 29, 2018, to overturn the case and remand it to the Regional Court.