No Tender May Be Conducted Without The Permission Of The Court That Issued The Precautionary Measure Decision.
T.C.
COURT OF CASSATION
GENERAL ASSEMBLY OF CIVIL LAW
CASE NO: 2017/12-1144
DECISION NO: 2017/1055
SUPREME COURT DECISION
DECISION UNDER REVIEW
COURT: Ankara 5th Enforcement Court
DATE: 03/04/2014
NUMBER: 2014/11 – 2014/479
PLAINTIFF-DEBTOR: Y.A., represented by Attorney K.Ü.
DEFENDANT-CREDITOR: T.C. Z. Bank A.Ş., represented by Attorney G.Ç.
DEFENDANT-AUCTION PURCHASER: C. Real Estate Auto Construction Industry and Trade Ltd. Co., represented by Attorney E.D.
Following the trial concerning the complaint filed by the parties regarding the “cancellation of the tender,” the Ankara 5th Enforcement (Civil) Court issued a decision dated 07.03.2013 and numbered 2012/765 E., 2013/182 K. rejecting the claim. Upon appeal by the complainant/plaintiff’s attorney, was first upheld by the decision of the 12th Civil Chamber of the Court of Cassation dated 27.06.2013 and numbered 2013/16830 E., 2013/24070 K. Subsequently, upon the complainant/plaintiff’s attorney’s request for a correction of the decision, the Supreme Court of Appeals 12th Civil Chamber’s decision dated November 1, 2013, numbered 2013/28103 E., 2013/34172 K., ruled that:
“… Article 134 of the Enforcement and Bankruptcy Law does not specify the reasons for cancellation of the auction one by one. It only mentions that the auction may be canceled due to the sale announcement not being served, a mistake in the essential characteristics of the sold goods, and tampering with the auction as described in Article 226 of the Civil Code.
The grounds for annulment of the auction, both in doctrine and in the practice of the Court of Cassation, are listed as follows:
1-) Tampering with the auction,
2-) Erroneous actions during the preparation for the auction,
3-) Erroneous actions during the conduct of the auction,
4-) The buyer being misled about the important characteristics of the immovable property.
In the specific case, the real estate auctioned had a provisional measure decision dated March 14, 2008, issued by the Ankara 14th Civil Court of First Instance, file no. 2008/7, recorded in the title deed. dated March 14, 2008, from the file numbered 2008/7. The enforcement office inquired with the aforementioned court whether the precautionary measure prevented the sale, and the court responded in a letter dated April 5, 2012, stating that the measure was still in effect and prevented the sale. Furthermore, upon examination of the enforcement file, it was determined that the plaintiff’s attorney in Ankara 14th Civil Court of First Instance Case No. 2008/7 consented to the sale by applying to the enforcement file on April 3, 2012. The consent given by the plaintiff’s attorney does not mean that the injunction imposed by the court can be lifted, but the sale could only be carried out if the court that issued the precautionary measure lifted the relevant precautionary measure. Therefore, the auction conducted without obtaining consent from the court that issued the precautionary measure should have been annulled. The rejection of the request was incorrect, and the court’s decision should have been overturned for this reason. Consequently, the request for correction of the decision should have been accepted…”
The case was overturned on these grounds and remanded for retrial, at the end of which the court upheld its previous decision.
APPELLANT: Complainant/plaintiff’s representative
DECISION OF THE GENERAL ASSEMBLY OF LAW
After review by the General Assembly of Law, it was determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and after reviewing the documents in the file, the following was decided:
In light of the parties’ mutual claims and defenses, the minutes and evidence in the file, and the compelling reasons explained in the reversal decision, it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals. Therefore, upholding the previous decision is contrary to procedure and law.
For this reason, the decision to uphold the previous decision must be reversed.
CONCLUSION: The complainant/plaintiff’s attorney’s appeal is accepted, and the decision to resist is REVERSED for the reasons stated in the Special Chamber’s reversal decision. Upon request, the advance appeal fee shall be refunded to the payer. Pursuant to Article 366/III of the Enforcement and Bankruptcy Law No. 2004, the right to appeal the decision is open within 10 days from the date of notification of the decision. The decision was made unanimously on May 31, 2017.