Court Of Cassation Decision On Precautionary Attachment
12th Civil Chamber Main: 2010/ 32724 Decision: 2011 / 15605 Date of Decision: 07.07.2014
Supreme Court Decision
COURT : Izmir 4th Execution Law Court
HISTORY : 29/07/2010
NUMBER : 2010/537-2010/1071
Upon the request of the creditor to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter has been sent to the department from the relevant file, it has been read and discussed and considered accordingly:
The creditor’s attorney started enforcement proceedings against the debtor company on 30.03.2010 with the interim attachment decision of İzmir 1st Commercial Court of First Instance dated 29.03.2010 and numbered 2010/312 D.İş on 30.03.2010 by way of attachment specific to bills of exchange, the payment order numbered sample 10 was notified to the debtor on 01.04.2010, and it was seen that the attachments were applied based on the interim attachment decision on 05.04.2010 upon the request of the creditor’s attorney.
In his application to the execution court, the debtor’s attorney claimed that the execution seizure cannot be applied as if there is a finalized proceeding, that excessive seizure was made, that there was no information about the precautionary seizure in the seizure report, and requested the cancellation of the seizure and preservation process.
Although the proceeding has not been finalized, there is no violation of procedure and law in the seizure and preservation transaction made on 05.04.2010 in the face of the existence of a valid precautionary attachment decision. However, in case of seizure exceeding the amount of debt determined in the interim attachment decision, the debtor may file a complaint. As a matter of fact, the debtor also claimed in the complaint petition that excessive seizure was made.
In that case, while the court should reject the complaint regarding the removal of the attachment and preservation process and make a decision according to the result to be formed by making an examination in terms of excessive attachment, it is inappropriate to establish a judgment to accept the request with the written justification. CONCLUSION: It was unanimously decided on 07/07/2011 to accept the creditor’s appeal objections and to (DISMISS) the court decision for the reasons written above in accordance with Article 366 of the BEC and Article 428 of the HUMK.
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