Although The Reasoned Petition Of Appeal Has Not Yet Been Submitted, Since There Is An Application, An Ex Officio Examination Regarding Public Order Should Be Made
Summary: The case is related to the complaint for the termination of the tender, and the court decision to reject the complaint was announced to the complainant’s attorney at the hearing dated 30.11.2017, and the complainant requested an appeal against the relevant decision in due time, on 06.12.2017, by submitting a petition for time attitude, but; It is seen that a reasoned petition of appeal was not submitted within the legal 10-day period. Although the Regional Court of Appeal filed a petition of appeal (time limit) in due time, the decision to reject the petition of appeal pursuant to Article 352 of the CCP without making an evaluation in terms of contradiction to the public order in the decision of the first instance court examined was inappropriate and required reversal.
T.C. 12th Civil Chamber of the Court of Cassation E: 2018/11290 K: 2018/12485 K.T.: 29.11.2018
COURT : … Regional Court of Appeal 22nd Civil Chamber
Upon the request of the plaintiff to examine the decision given by the District Court of Appeal with the above date and number within the due date, the file related to this matter was sent to the department, and after the report prepared by the Examining Judge … for the case file was listened to and all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
According to the provisional article 7 added to the Execution and Bankruptcy Law by the Law dated 18.3.2005 and numbered 5311, which amends the provisions of the Execution and Bankruptcy Law numbered 2004 regarding appeal and decision correction, in parallel with the Law on the Establishment, Duties and Authorities of the Courts of First Instance and Regional Courts of Appeal dated 26.9.2004 and numbered 5235, the provisions of the Law numbered 5311 shall apply to the decisions made after 20.07.2016, when the Regional Courts of Appeal took office.
The debtor applied to the execution court with the complaint of termination of the tender, … The 1st Execution Law Court decided to reject the complaint with the decision dated 30.11.2017 and numbered 2017/883 E. – 2017/1114 K., upon the application of the complainant to the appeal against the decision of the first instance court, … The 22nd Civil Chamber of the Regional Court of Appeals dated 23.3.2018 and numbered 2018/393 E.- 2018/686 K. 2018/686 K. dated 23.3.2018 and numbered 2018/393 E.- 2018/686 K., it is understood that it was decided to reject the appeal petition in accordance with Articles 342/2-e, 352 and 346 of the CCP.
In Article 342/3 of the Code of Civil Procedure No. 6100; “If the petition of appeal bears the identity and signature of the applicant and the records that will sufficiently identify the decision appealed, even if other issues are not present, it will not be rejected and the necessary examination will be made within the framework of Article 355”; In Article 355 of the same Law; “The examination is limited to the reasons stated in the petition of appeal. However, if the regional court of justice sees a violation of public order, it shall consider this ex officio.” and in Article 352/1 of the same Law, it is stated that the necessary decision will be made in case the application conditions are not fulfilled or the reasons or justification for the application are not shown at all.
The case is related to the complaint for the termination of the tender, and the court decision to reject the complaint was announced to the complainant’s attorney at the hearing dated 30.11.2017, and the complainant requested an appeal against the relevant decision in due time by submitting a time position petition on 06.12.2017, however; Although the reasoned decision was notified on 18.5.2018, it is seen that a reasoned petition of appeal was not submitted within the legal 10-day period.
In this case, the work to be done by the Regional Court of Appeal, as stated in Article 342/2/e 342/3 of the CCP, consists of examining the appeal request limited to public order in accordance with Articles 352 and 355 of the CCP, without rejecting the appeal petition, and deciding according to the result. In the court decision examined through appeal, in terms of the control of contradiction to public order; Since the examination on the merits of the work will also be made, it will be necessary to decide to reject the appeal request on the merits in accordance with Article 353/1-b-1 of the CCP.
In that case, although the Regional Court of Appeal decided to reject the petition of appeal in accordance with Article 352 of the CCP without making an evaluation in terms of contradiction to public order in the decision of the first instance court examined, although the petition of appeal was filed in due time, it was inappropriate and the decision had to be reversed for the stated reason.
CONCLUSION : For the reasons written above, the decision of the 22nd Civil Chamber of the … Regional Court of Appeal dated 23.3.2018 and numbered 2018/393 E.- 2018/686 K. shall be reversed in accordance with Article 373/2 of the CCP No. 6100, which should be applied by reference to Article 364/2 of the EBL amended by the Law No. 5311, and the file shall be sent to the … Regional Court of Appeal, it was unanimously decided on 29/11/2018.