Sending A Payment Order For The Second Time Means A New Time Right
General Assembly of Civil Chambers 2014/939 E. , 2016/442 K.
“Case Law Text”
COURT :Execution Law Court
At the end of the trial held due to the “eviction” lawsuit between the parties; Upon the request of the defendant’s attorney for examination of the decision dated 04.06.2013 and numbered 2013/256 E-2013/382 K, which was given by Bursa 6th Execution Law Court on the acceptance of the case, with the decision of the 6th Civil Chamber of the Court of Cassation dated 24.10.2013 and numbered 2013/12681 E-2013/14298 K;
(…Upon the objection of the defendant debtor to the enforcement proceedings initiated by the plaintiff creditor against the defendant debtor for the collection of the rent receivable, the plaintiff requested eviction without requesting the removal of the objection from the enforcement court. The court decided for eviction and the decision was appealed by the defendant debtor.
The plaintiff creditor requested the collection of 43500 TL rent receivable with the enforcement proceeding initiated against the defendant debtor with the request for eviction, and upon the notification of the payment order to the debtor on 03.08.2013, the defendant debtor stated in the objection petition dated 11.03.2013 that he did not owe rent and requested the suspension of the proceeding.
From the examination of the execution file numbered 2013/584 Esas of Bursa 18th Execution Directorate, it is understood that a payment order was sent to the debtor twice, the first notification was notified in accordance with TK 21 upon the absence of anyone at the address, after the first notification made irregularly by the creditor’s attorney, it was decided to serve a payment order to the debtor again with the request dated 07.03.2013 and this time the payment order was duly served to the debtor on 03.08.2013.
In case the payment order is re-notified upon the request of the creditor, the conclusion should be based on the date of notification of the last payment order. İn the petition, the plaintiff’s attorney stated that the debtor did not object to the payment order and did not pay the debt, and requested a decision to evict the defendant tenant from the immovable property, and although the court decided to evict the defendant debtor by stating that the defendant debtor did not object to the follow-up file, it is clear that the debtor objected to the payment order in due time according to the valid notification date. In this case, it is not correct for the court to decide on eviction without deciding to remove the objection.
The decision should therefore be reversed…)
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the eviction request due to the finalised proceedings.
The plaintiff’s attorney stated that there is a lease relationship between the parties, an enforcement proceeding was initiated against the defendant-tenant with the request for collection of the unpaid rent receivable and eviction, and despite the notification of the payment order on 25.02.2013, no objection was made and the debt was not paid, and requested a decision to evict the defendant tenant from the leased immovable pursuant to Article 269/a of the …Law.
Defendant’s attorney; the lease agreement dated 01.01. 2007 and for a term of 3 years is subject to the general provisions of the Code of Obligations, not to the provisions on residential and roofed immovable leases, therefore the contract has expired, the price to be claimed after the expiry of the contract period is in the nature of ecrimisil, since this issue requires judgement, the general law courts are in charge, a decision of non-jurisdiction should be made, the Nilüfer Municipality declared that the rent of the plaintiff has not started in the law court of first instance between the original lessor Nilüfer Municipality and the parties,
Therefore, the court defended the dismissal of the lawsuit by stating that the plaintiff did not have the capacity of a party, that the lease agreement on which the plaintiff relied was a “karting track-park” and that it was rented with a licence, that the contract was subject to the provisions of revenue rent, that a 60-day payment period should be given in the default notice (payment order), and that the notice (payment order) was irregular due to the 30-day payment period.
The court decided to accept the lawsuit on the grounds that despite the notification of the payment order on 25.02.2013, no objection was made and the debt was not paid, and the default conditions were met.
Upon the appeal of the defendant’s attorney, the judgement was reversed by the Special Chamber on the grounds written above.
Local Court; upon the second notification of the payment order to the debtor on 08.03.2013 upon the request of the creditor’s attorney in the follow-up file, the debtor filed an objection petition on 11.03.2013, and the execution directorate filed an objection petition on 15.03.2013 due to the fact that the payment order was notified on 25.02.2013. 2013, since the payment order was served on 25.02.2013, the execution directorate decided to reject the objection request and did not decide to stop the proceeding, although the debtor was aware of the decision dated 15.03.2013 in the proceeding file with the eviction case, he did not apply to the execution court within 7 days by way of complaint and did not request the cancellation of the decision, thus the proceeding became final.
The defendant attorney appeals the decision of resisting.
The dispute before the General Assembly of Civil Chambers is whether the proceeding is finalised in the event that the enforcement directorate decides to reject the objection request upon the objection petition submitted in due time when the payment order is served for the second time upon the request of the creditor upon the improper service of the payment order, and whether an eviction decision can be made based on the finalised proceeding according to the result to be reached.
According to the established practices of the Court of Cassation, sending a payment order to the debtor for the second time means that he is given a new right and period of objection. In this case, it is necessary to conclude on the basis of the second payment order (11.11.2009 dated and E:2009/12-417, K:2009/511, 20.03.2013 dated and E:2012/12-1129, K:2013/380). In the concrete case, there is no dispute on this issue.
It is seen that the defendant-debtor objected in due time upon the notification of the payment order for the second time, but the execution manager decided to reject the request on the grounds that the objection was not in due time according to the date of notification of the first payment order.
Article 269 of the Execution and Bankruptcy Law No. 2004 regarding the eviction of leased immovable properties
“If the proceeding is related to ordinary rents or revenue rents and the creditor also requests it, the payment order shall contain the notice stipulated in Articles 260 and 288 of the Code of Obligations and the notification that the debtor may be asked to be evicted from the leased property by the enforcement court after the legal period has expired.
Upon this notification, the debtor is obliged to notify the enforcement office of the reasons for objection within seven days in accordance with the provisions of Article 62. If the debtor does not explicitly and unequivocally reject the lease agreement and his signature, if any, in the agreement, he shall be deemed to have accepted the agreement.
The objection stops the proceedings. The creditor who does not request the removal of the objection within six months from the date of notification of the objection may not pursue the same receivable through execution without judgement.
In cases where Article 260 of the Code of Obligations allows the lessor to terminate the contract at the end of the six-day deadline, the objection period is three days.”
Article 66 of the same law, which should also be applied in the proceedings regarding the eviction of the leased immovables with the reference to Article 269/d, states that “the objection made within the time limit stops the proceedings. If the objection is not made within the time limit, upon the request of the creditor, the enforcement officer shall continue the proceedings for the entire receivable. İf the debtor has objected to only a part of the debt, the proceedings shall be continued for the amount accepted.
If the debtor rejects the signature in his objection, the creditor may immediately request the execution office to subpoena the signatures that are subject to enforcement.”
A timely and valid objection in the execution proceeding through general attachment automatically stops the execution proceeding. The execution proceedings cannot be continued until the objection is removed.
The execution manager shall examine whether the objection is made within the time limit. A complaint may be filed against the decision of the execution manager that the objection is not in time and valid. However, if the objection is in time and valid, the enforcement proceedings will be suspended even if the complaint is not filed. In this case, the erroneous decision of the executive director is not a constructive decision and does not have any consequences even if it is not cancelled through complaint. Since the enforcement proceeding stops automatically with the objection in due time, it cannot be said that the enforcement proceeding is finalised.
During the discussions in the General Assembly of Civil Chambers, it was argued that the decision of resistance should be upheld on the grounds that the execution manager’s action was erroneous but valid as long as it was not cancelled, but this opinion was not adopted by the majority.
On the other hand, even though the reversal order states “Bursa 9th Execution Directorate’s file numbered 2013/584 E” instead of “Bursa 18th Execution Directorate’s file numbered 2013/584 E” and “03.08.2013” instead of “08.03.2013” as the date of notification of the second payment order, since these issues are related to material errors and do not affect the result, it is sufficient to mention the mistake.
Therefore, it is contrary to the procedure and the law to resist the previous decision, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
CONCLUSION :
With the acceptance of the appeal objections of the defendant’s attorney, it was decided by majority of votes on 30.03.2016 that the decision of resisting the decision of the Special Chamber shall be reversed for the reasons shown in the reversal decision of the Special Chamber, and the prepaid appeal fee shall be returned to the depositor, if requested.
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