Legal General Assembly 2013/1109 E., 2014/623 K.
"Case Law Text"
COURT: Konya 1st Enforcement Court
DATE: 24/05/2012
NUMBER: 2012/339 E-2012/468 K
At the end of the trial made due to the "residence complaint" case between the parties; Upon the request by the attorney of the defendant-creditor, the 12th Civil Chamber of the Supreme Court of Appeals on the date of 06.03.2012 and 2012 With the decree numbered / 399-2012 / 6562;
(… The debtor's application to the enforcement court is the complaint of non-attachment due to residence based on Article 82/12 of the HRD.
It has been understood that the immovable subject to the complaint was attached to the title deed on 25.03.2008 and the attachment notification number 103 was notified to the debtor on 27.05.2008.
16th and 82/12. In accordance with the provisions of the articles, the debtor must file his / her housing complaint to the enforcement court within 7 days from the date he learned about the attachment.
In the concrete case, it was understood that although the debtor was informed of the attachment with the notification of 103 invitation on 27.05.2008, he applied to the enforcement court on 23.06.2009 with the request of the removal of the attachment due to residence, without making any claim for the irregularity of the aforementioned notification process. In this case, the court should decide to dismiss the complaint due to the deadline, the fact of the work was examined and the decision made in writing was inaccurate and the decision should be reversed, it was understood that the decision was approved by our Office, and the creditor's request for correction was rejected on the grounds that it was rejected on the grounds that the file was rejected. the previous decision was resisted.
After examining by the General Assembly of Law, it was understood that the decision of resistance was appealed in time and the papers in the file were read, the necessary discussion was made:
Plaintiff S .. D .. attorney summarized in the petition of 23/06/2009 fee; “Regarding the prosecution of Konya 3rd Enforcement Directorate in its file numbered 2007/6137 against his client, his client was only dismissed on 19.06.2009 from the appraisal report made on the property he owns, and the Konya 1st Enforcement Court He claimed that he filed a lawsuit in the 2009/944 Basis file, therefore he claimed to have a residence claim within the time limit, and asked for a decision to accept his residence claim ”.
In summary, the defendant SHÇEK attorney in his response petition dated 13.07.2009; He requested that "... 103 invitations regarding the confiscated real estate were issued, that there was no objection within the legal period, the rejection of all objections not made within the period subject to the İİK numbered 2004 and the claim of residence".
Upon the appeal request of the defendant, the court's request was accepted and the court decision was approved, and upon the request for correction, the decision of the court was reversed by accepting the request for correction.
The court stated, “Considering the file numbered 2009/944 of our court, which was finalized through the Supreme Court stages, the plaintiff debtor was informed of the real estate seizure due to the appraisal report on 19/06/2009,… the plaintiff debtor S .. D .. the notification document part is not present in the execution file,…. There is no clear record and annotation about what was notified to the debtor in the notification piece in both the enforcement directorate's warrant dated 28/08/2008 and the reply warrant of the PTT directorate dated 22/09/2008, therefore, the plaintiff debtor was duly not served 103 attachment notices. … Considering the date 19.06.2009, which is the date on which the appraisal report was notified, resisted in his previous decision on the grounds that the case was opened on time ”.
The dispute before the General Assembly of Law; According to the Article 103 of the İİK, whether the notification of foreclosure has been made or not, depending on the conclusion to be reached here, is summed up at the point of whether the residence claim is in time or not.
As a rule, although the property, receivables and rights of the debtor can be seized for debt, it has been accepted in Articles 82 and 83 of the EBRD 2004 that, as an exception, certain properties and rights cannot be seized in order for the debtor and his family to survive and maintain their economic existence. One of them is İİK m. According to 82/12, it is the "house suitable for the state" of the debtor. If the house suitable for the debtor's status is seized, it must be complained within the period of this transaction.
According to Article 16 of the İİK, the debtor must complain to the enforcement court within seven days from the date the transaction was learned, except in cases involving public order, due to the fact that the action carried out by the enforcement and bankruptcy office was contrary to the law or not in accordance with the incident. If the debtor does not make a claim for residence within the period of time or makes a complaint after its term, it is deemed to have waived the residence claim.
In the concrete case; Immovables registered in the name of the debtor on 19.03.2008 after the debtor S .. M .. initiated execution proceedings in 2005 due to the lease receivables against the debtors S .. D .. and the other follow-up debtor, the follow-up was canceled in 2006, renewed in 2007, and the follow-up was finalized. The creditor was requested to put attachment on the residence of the debtor on 25.03.2008, on 12.05.2008, upon the request of the creditor's representative, the notification of attachment notification leaf was decided to the debtor on 12.05.2008, 103 copies of the attachment notice were present in the file, but the notification regarding the 103 attachment notice did not return. According to the letter dated 22.09.2008 of the General Directorate of PTT, the document is 7201 p. In accordance with Article 21 of the Law, 27.05.
Considering this current situation, the complainant debtor has not made any complaints about the content and notification of the notification issued by the debtor, and since the appraisal and condition determination report regarding the immovable held in the presence of the debtor on 20.11.2008 is not alleged otherwise, the debtor's immovable seizure shall be made at the latest 20.11.2008. it is clear that he learned on the date of 7 days and did not make a complaint.
In that case, while the decision to overturn the Special Chamber, which was adopted by the General Assembly for the additional reasons above, should be followed, it is against the procedure and the law to resist the previous decision.
The decision to resist must therefore be broken.
CONCLUSION: For the reasons explained above, the defendant-creditor's attorney's acceptance of appeals and the decision to resist, with reference to the additional justification shown above and the reasons shown in the Special Chamber reversal decision, with reference to the "Provisional Article 3" added to the Civil Procedure Law numbered 6100 and Article 30 of the Law no. According to Article 429 of the Code of Civil Procedure numbered 1086, which is in effect, the Law No. It was unanimously resolved at the meeting held on 07.05.2014, with the option to revise the decision within 10 days from the notification.