Since The Defendants In The Consolidated Lawsuit Accepted At The First Hearing That They Were Represented By Proxy In the Consolidated Lawsuit, One Part Of The Attorney’s Fees In The Original And Consolidated Lawsuit Should Be Awarded To Both Of Them
T.C. JUDICIARY
1st Civil Chamber
Basis: 2013/18150
Decision: 2014/4386
Date of Decision: 26.02.2014
DEED CANCELLATION AND REGISTRATION CASE – KETMİ VERESE – SINCE THE DEFENDANTS IN THE MERGED CASE ADMITTED AT THE FIRST HEARING THAT THEY REPRESENTED THEMSELVES BY PROXY IN THE CASE, IT IS NECESSARY TO AWARD ONE PART AND TWO PARTS OF THE ATTORNEY FEE IN THE MAIN AND MERGED CASE – REVERSAL OF THE JUDGMENT
SUMMARY: The main and consolidated cases are related to the request for cancellation and registration of the title deed based on the legal reason of ketmi verese. Since the defendant V. accepted the case before the first hearing in the main case and the defendants in the joined case accepted the case in the first hearing in which they were represented by an attorney, it is necessary to award one part and two parts of the attorney’s fee in the main and joined case.
(1136 S. K. art. 166)
Case: At the end of the land deed cancellation and registration case consolidated between the parties, the decision of the local court regarding the acceptance of the main and consolidated case was appealed by the plaintiffs’ attorneys within the legal period, the file was examined, the report of the Examining Judge B. B. was read, his explanations were listened to, and the necessity was discussed;
Decision: The main and consolidated lawsuit is related to the request for cancellation and registration of the title deed based on the legal ground of ketmi verese.
The court decided to accept the main and combined lawsuit on the grounds that the certificate of inheritance, which constitutes the basis of the records in the name of the parties, has been canceled and the shares of the heirs have been redetermined, and that there is no need to make a judgment on the attorney fee; the judgment was appealed by the plaintiffs’ attorney for the attorney fee.
As it is known; Article 6 of the Attorney Minimum Fee Tariff stipulates that <If the dispute is resolved until the preliminary examination report is signed, half of the fees determined by the provisions of the tariff shall be ruled, and if it is resolved after the preliminary examination report is signed, the entire fee shall be ruled. However, the attorney’s fee to be awarded according to the court where the case is heard cannot exceed the amounts written in the second part of the second part>.
In the concrete case, the court did not issue a preliminary examination report in the original and consolidated case, the statement of claim in the original case was served to the defendant V. on 27.04.2012 and the defendant V. accepted the case with the reply petition dated 10.05.2012 before the date of the first session (28.06.2012); in the consolidated case, the statement of claim was not served to the defendants (the consolidation decision was served only to the defendant Hüseyin on 20. 03.03.2013) and the defendants were represented in the hearing dated 28.03.2013 by Attorney A. E., who represented their mother V. in the original lawsuit, by presenting their power of attorney and in the same hearing, the attorney for the defendants stated that he repeated the reply petition dated 10.05.2012, which included the statement of acceptance.
As such, since the defendant V. accepted the lawsuit before the first hearing in the main case and the defendants accepted the lawsuit in the first hearing where they were represented by their attorneys in the combined case, it is not correct to make a written decision while ½ of the attorney fee should be awarded in the main and combined case.
Conclusion The appeal objections of the plaintiffs’ counsel are appropriate. It was unanimously decided on 26.02.2014 that the judgment shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) and the advance fee shall be returned to the appellant.
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