The Petition Submitted In The Finalised Case Without The Appointment Of Parties And Supreme Court Review Should Be Accepted As An Appeal Request
14th Civil Chamber 2021/1101 E. , 2021/2357 K.
“Case Law Text”
14th Civil Chamber
COURT :Magistrate Law Court
At the end of the hearing held upon the request for renewal of the trial with the petition filed by the plaintiff’s attorney against the defendant on 19.07.2018; the Supreme Court of Appeals examination of the judgement dated 18.10.2018, which was given on the dismissal of the lawsuit, was requested by the plaintiff … attorney, and after the acceptance of the petition of appeal, which was understood to be in due time, it was decided to accept it, and then the file and all the papers in it were examined and considered accordingly:
DECISION
The lawsuit is related to the request for the renewal of the judgement on the elimination of the partnership by sale through the return of the judgement.
The plaintiff … attorney stated that with the decision of Manisa 1st Civil Court of Peace dated 25.04.2007 and numbered 2006/605 Main and 2007/499 Decision dated 25.04.2007, it was decided to eliminate the partnership of the immovable property numbered 2711 block 38 parcel by sale, and it became final on 09.07.2007 after the parties did not appeal the decision. 2007, but while the proceedings were continuing, the owner of the title deed record … was not informed about the proceedings, notifications were sent to an address in Turkey even though he lives abroad and irregular notifications were made, and as a result, it was decided to accept the case without making him a party to the case and the immovable property subject to the lawsuit was sold and requested the renewal of the proceedings.
The defendant … defended the rejection of the lawsuit by stating that the notifications made to the plaintiff were in accordance with the procedure.
Court decided to reject the request for renewal of the judgement.
The plaintiff … attorney appealed the judgement.
Article 375 of the Code of Civil Procedure No. 6100 titled “Reasons for Reinstatement of the Trial” reads as follows
“(1) Restitution of the judgement may be requested based on the following reasons:
a) The court has not been constituted in accordance with the law.
b) A judge who is prohibited from hearing the case or whose request for recusal has been accepted as final by the competent authority has rendered or participated in the judgement.
c) The case has been heard and decided in the presence of persons who are not attorneys or representatives.
ç) A document that could not be obtained during the proceedings due to reasons beyond the control of the party against whom the judgement was rendered was obtained after the judgement was rendered.
d) The forgery of the promissory note taken as a basis for the decision has been decided or the forgery of the promissory note has been acknowledged before a court or an official authority.
e) The witness whose testimony is taken as the basis of the decision is found to have given false testimony after the decision.
f) It is established that the expert or interpreter has deliberately made a false statement about the matter taken as the basis of the judgement.
g) The party in whose favour the judgement is rendered has falsely sworn the oath taken as a basis for the judgement, which is established by means of a confession or written evidence.
ğ) A judgement taken as a basis for a decision has been annulled by another finalised judgement.
h) The party in whose favour the judgement has been rendered has committed a fraudulent act which has influenced the judgement.
ı) After the finalisation of a judgement rendered at the end of a lawsuit, a judgement contrary to the previous one is rendered in a second lawsuit with the same parties, subject matter and cause, and this judgement is also finalised.
i) It has been determined by a finalised judgement of the European Court of Human Rights that the judgement was rendered in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms or the protocols annexed thereto, or the application filed to the European Court of Human Rights against the judgement has been dismissed as a result of a friendly settlement or unilateral declaration.
(2) In the cases specified in subparagraphs (e), (f) and (g) of the first paragraph, the request for restoration of the proceedings shall be conditional upon the condition that these reasons have been determined by a finalised criminal conviction decision. If the criminal prosecution could not be initiated or a conviction could not be decided for a reason other than the lack of evidence, the decision of the criminal court is not sought. In this case, the reason for the restitution of the proceedings relied upon must first be proved in the restitution of the proceedings.”,
The provision is included.
As for the concrete case; one or more of the shareholders shall file a lawsuit for the elimination of shareholding against the other shareholders. Pursuant to Article 27 of the Code of Civil Procedure No. 6100, it is mandatory for all stakeholders to take part in the lawsuit. In case of the death of one of the shareholders or one of the partners, the merits of the case should be examined after ensuring the participation of the heirs in the case according to the certificate of inheritance to be obtained.
The fact that the decision was rendered in the absence of …, without duly addressing the case to Nurittin son …, who has been a shareholder since 12.03.1996, is not one of the reasons for the return of the proceedings specified in Article 375 of the Code of Civil Procedure No. 6100 in a limited number. However, despite the fact that the parties were not duly constituted in the case for the elimination of the partnership for which the return of the proceedings is requested, the decision was finalised since it was not appealed. For this reason, since there is no finalised decision in terms of substantive law, the request is accepted as an appeal request for the decision of Manisa 1st Civil Court of Peace dated 25.04.2007, numbered 2006/605 Main and 2007/499 Decision, and the finalisation annotation dated 09.07.2007 was removed and the merits of the case were examined.
While the court should notify the owner of the title deed record, Nurittin son …, to be a party to the case for the elimination of the partnership by notifying the petition duly, and should make a decision according to the result after his defence is received and his evidence is collected, it was not deemed correct to make a decision with incomplete party composition in writing without party composition, and for this reason, the judgement of Manisa 1st Civil Court of Peace dated 25.04.2007 and numbered 2006/605 Main and 2007/499 Decision dated 25.04.2007 should be reversed.
CONCLUSION:
For the reasons explained above, with the acceptance of the appeal objections of the plaintiff … attorney, the finalisation annotation regarding the judgement of Manisa 1st Civil Court of Peace dated 25.04.2007 and numbered 2006/605 Main and 2007/499 Decision dated 25.04.2007 was removed and the judgement was reversed, it was decided unanimously on 31.03.2021 that it is not necessary to examine other issues for the time being, and the prepaid fee should be returned to the depositor.
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