All Buyers And Shareholders Should Take Part In Cancellation Of Tender Cases Regarding The Sales In The Relief Of Partnership
12th Civil Chamber 2021/684 E. , 2021/2377 K.
“Case Law Text”
COURT : … Regional Court of Appeal
Upon the request of the complainant and some of the defendants to examine the decision given by the Regional Court of Justice with the date and number written above, the file related to this matter was sent to the department, and after listening to the report prepared by the Examining Judge … for the case file and after all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
It is understood that the complainant applied to the law court of peace with the request for termination of the tender regarding the immovable property numbered 80 block 3 parcel, which was auctioned on 23/05/2016 after the sale by eliminating the partnership, and the court of first instance decided to reject the request on the merits, and the appeal application made by the complainant shareholder and some of the defendant shareholders against this decision; It is understood that it was decided to be rejected on the merits.
According to Article 50 of the CCP No. 6100; the one who has the capacity to benefit from civil rights also has the capacity of a party in the case. According to Article 51 of the same Law, the capacity to sue is determined according to the capacity to exercise civil rights.
The capacity of a party is the procedural equivalent of the capacity of right in civil law, and it starts with birth and ends with death. Who has the capacity of a party is determined according to the TCC (TCC Art. 8, and 48). Accordingly, every natural or legal person who has the capacity of right has the capacity of a party in the lawsuit. Pursuant to Article 28/1 of the TCC, the personality of natural persons and therefore their capacity of right ends with death. For this reason, a lawsuit cannot be filed against a person who died before the date of the lawsuit. If a lawsuit is filed, the participation of the heirs to the lawsuit can be ensured in accordance with the provision of Article 124 of the CCP. For persons who die after the lawsuit is filed, since the legal personality disappears, if the subject of the lawsuit is of such a nature that the heirs can participate in the lawsuit or continue the lawsuit, the lawsuit may be postponed until the period determined by law in accordance with Article 605 et seq. of the TCC. In this case, the heirs of the deceased person who accept the inheritance take part in the proceedings as compulsory litigation partners. The capacity to sue is the equivalent of the capacity to act in civil law, and is the ability of a person to follow the lawsuit by himself/herself or through a proxy authorised by him/her, and to perform procedural acts. All natural and legal persons who have the capacity to act also have the capacity to sue.
As clearly regulated in Article 114/1-d of the CCP No. 6100, litigation and party capacity are among the litigation conditions. Litigation conditions are the conditions that must be present from the beginning to the end of the lawsuit. In other words, every real or legal person who files a lawsuit and is a defendant must have maintained this capacity until the continuation of the lawsuit and the finalisation of the judgement.
As for the capacity of a party, as a rule, the authorisation to sue a right (right to sue) belongs to the owner of that right. Who is the owner of a right, and therefore to whom the authorisation to sue for that right belongs (who will be the plaintiff in that case) is entirely material
the rules of law. However, if it is determined that the plaintiff of a lawsuit does not have the capacity of a plaintiff, the court cannot examine whether the right subject to the lawsuit exists or not and has to dismiss the lawsuit due to lack of capacity; therefore, the capacity of a party is also regulated by procedural law.
In other words, capacity is the relationship between the subjective right (right of action) and the parties. While the capacity of a party, the capacity to sue and the authority to pursue the lawsuit are related to the personalities of the parties to the lawsuit, the capacity of a party is related to the subjective right subject to the lawsuit (Baki Kuru-… Arslan-Ejder Yılmaz, Civil Procedural Law, 7th edition, … 1995, p. 231). Therefore, the parties to the lawsuit must have the capacity of a party. In other words, in order to be a party to a lawsuit, one must be either a natural person or a judgemental person. This is because the capacity of a party corresponds to the capacity to exercise rights in civil law
Article 612/I of the Turkish Civil Code stipulates that if the inheritance is rejected by all of the closest legal heirs, it shall be liquidated by the Civil Court of Peace according to the provisions of bankruptcy. Pursuant to this provision, in the event that one of the parties dies and the inheritance is rejected by all of the closest legal heirs, since the inheritance will be liquidated by the Court of Peace according to the provisions of bankruptcy, it becomes obligatory to continue the lawsuit by directing it to the liquidator after the appointment of the liquidator by notifying the Civil Court of Peace.
Since the composition of the parties is a matter of public order, this issue is automatically observed by the court due to its duty and by the Court of Cassation in case of appeal.
According to Article 703 of the TCC, joint ownership ends with the transfer of the property, dissolution of the community or transition to shared ownership. All partners must participate in the lawsuits to be filed regarding the property subject to joint ownership.
In the cancellation of tender lawsuits related to the sales made based on the decision of elimination of the partnership, all of the shareholders together with the buyer must be shown as the opponent.
In the concrete case, Firaz Gündoğdu, who is the shareholder of parcel 80, block 3, was not involved in the lawsuit for the cancellation of the tender filed after the sale made by the elimination of the partnership, although he should have been shown as a party in the lawsuit for the cancellation of the tender, the notifications issued to the defendant shareholder … during the trial phase were returned with no notification, an address search was made according to the Notification Law and no notification was issued again, one of the shareholders … died on 19/12/2016 and … 1. Civil Court of Peace, 2017/83 E.-2017 /1678 K. numbered decision and the unconditional rejection of the inheritance by the heirs … and … on 21/04/2017 and the death of … during the trial phase and the party capacity of … was terminated, therefore, in accordance with the provision of Article 55 of the CCP No. 6100, the heirs who did not reject the inheritance in this lawsuit, which also affects the property rights of the heirs, should take part in the lawsuit together as compulsory litigation partners. In accordance with the provision of Article 55 of the CCP No. 6100, the heirs who did not reject the inheritance in this case, which also affects the property rights of the heirs, should take part in the case together as compulsory litigation partners, although it is not understood from the scope of the file, if it is determined that the inheritance is unconditionally rejected by all heirs, the process regarding the liquidation of the estate according to the provisions of bankruptcy should be waited, again, considering that there is no party capacity for the persons who rejected the inheritance, it cannot be directed against, … ‘s death on 03/03/2010, considering that the heirs … and … reported that they unconditionally rejected the inheritance in their statements taken at the hearing, a lawsuit cannot be filed against the dead person, but the case can be directed to the heirs who accepted the inheritance with the change of parties in accordance with Article 124 of the CCP. Pursuant to Article 124 of the CCP, the case may be directed to the heirs who accepted the inheritance with the change of parties, in case of unconditional rejection of the inheritance by all heirs, the process regarding the liquidation of the estate according to the provisions of bankruptcy should be waited, and again, since it is seen that the shareholder … died on 04.07.2019, it is necessary to make a decision by ensuring the party formation in accordance with the provisions of Articles 124 of the CCP and 605 et seq. of the TMK.
In that case, the court has reversed the decision in order to continue the proceedings by ensuring the formation of the parties as explained above and to establish a judgement according to the result to be formed.
CONCLUSION :
With the acceptance of the appeal request, for the reasons written above, in accordance with Articles 371/1.b, 373/1 of the CCP No. 6100, which should be applied with reference to Article 364/2 of the Bankruptcy Enforcement Law amended by Law No. 5311, the decision of the 21st Civil Chamber of the … Regional Court of Justice dated 16.07.2020 and numbered 2019/914 E.-2020/1511 K. regarding the rejection of the appeal request on the merits should be reversed and the decision of the … 2nd Civil Court of Peace dated 25.09.2018, 2016/931 E.-2018 /1584 K., according to the reason for the reversal, it is not necessary to examine the appeal requests of the complainant and some of the defendant shareholders at this stage, the prepaid fee shall be returned upon request, the file shall be sent to the Court of First Instance, and a copy of the decision shall be sent to the Regional Court of Appeal, it was unanimously decided on 03/03/2021.
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