Submission Of The Appeal Time Limit Request Within The Time Limit, Expiration Of The Appeal Period Supreme Court Decision
Supreme Court of Appeals, 12th Civil Chamber
Case No.: 2018/47
Decision No.: 2018/6880
Upon the plaintiffs’ request for an appeal review within the time limit of the decision issued by the Regional Court of Justice with the above date and number, the file related to this case was sent to the chamber. After hearing the report prepared by the Review Judge for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
In parallel with the Law No. 5235 dated 26.9.2004 on the Establishment, Duties, and Powers of the Courts of First Instance and Regional Courts of Appeal, the provisions of the Enforcement and Bankruptcy Law No. 2004 regarding appeal and correction of decisions were amended, and the provisions concerning appeal and cassation were reorganized by the Law No. 5311 dated 18.3. According to the temporary Article 7 added to the Enforcement and Bankruptcy Law by Law No. 5311 dated March 18, 2005, the provisions of Law No. 5311 shall apply to decisions rendered after July 20, 2016, when the Regional Courts of Justice commenced their duties.
Article 342/3 of the Code of Civil Procedure No. 6100 stipulates that “The appeal petition shall not be rejected even if it does not contain other details, provided that it bears the identity and signature of the applicant and contains sufficient information to identify the decision appealed against, and the necessary examination shall be carried out within the framework of Article 355.” Article 355 of the same Code stipulates that: “The review shall be limited to the grounds stated in the appeal petition. However, if the regional court of appeal finds a violation of public order, it shall take this into consideration ex officio.” Article 352/1 also states that the necessary decision shall be made if the conditions for the application are not met or if the reasons or grounds for the application are not stated at all.
In the present case, the decision rendered by the enforcement court was notified to the debtor’s representative at the hearing on January 3, 2017, and the debtor’s representative submitted the appeal petition within the time limit (i.e., on January 12, 2017) in accordance with Article 363 of the Enforcement and Bankruptcy Code. in accordance with Article 342/3 of the Code of Civil Procedure. Although the debtor’s representative was notified of the first instance court’s reasoned decision on February 8, 2017, he did not submit his petition containing the grounds for appeal within the 10-day period.
In this case, the regional court of appeal must, as specified in Article 342/3 of the Code of Civil Procedure, conduct a review limited to public order in accordance with Article 355 of the Code of Civil Procedure, without rejecting the appeal petition. If no violation of public order is found in the court decision under review, since the merits of the case will have been examined, the appeal must be dismissed on the merits pursuant to Article 353/1-b-1 of the Code of Civil Procedure.
Therefore, since the regional court of appeal determined that there was no violation of public order in the decision of the court of first instance under review, even though the appeal was filed within the time limit, pursuant to Article 353/1-b-1 of the Code of Civil Procedure, the appeal request must be dismissed on its merits, and dismissal on procedural grounds pursuant to Article 352 of the Code of Civil Procedure is inappropriate.
CONCLUSION: The decision of the 12th Civil Chamber of the Gaziantep Regional Court of Appeal dated 25/04/2017 and numbered 2017/1116 E. – 2017/1101 K. is reversed for the reasons stated above, pursuant to Article 364/2 of the Enforcement and Bankruptcy Code, as amended by Law No. 5311, of the Code of Civil Procedure No. 6100, which must be applied pursuant to the reference in Article 373/2 of the Code of Civil Procedure No. 6100, as amended by Law No. 5311, is REVERSED. Considering the grounds for reversal, there is no need to examine the appeals at this stage, and the file is remanded to the Regional Court of Justice that issued the decision. This decision was made unanimously on 06/27/2018.