Enforcement Complaint Petition
-SAMPLE PETITION-
ANKARA DUTY ( ) ENFORCEMENT LAW COURT
Execution File No: Ankara …Execution Directorate 2021/…… E.
Precautionary Measure, Stay of Proceedings Requested.
COMPLAINANT
(DEBTOR) :
ADDRESS :……
(DEBTOR’S) PROVISOR :
ADDRESS :
TELEPHONE :
(CREDITOR) : :
ADDRESS :…………
REPRESENTATIVE :
ADDRESS :……………………………
SUBJECT :
Cancellation of the Execution of the Execution Made in Violation of the Execution Decree and Immediate Suspension of the Proceedings
DISCLOSURES
Ankara …..Execution Directorate’s 28/06/2021 Date, 2021/….. The EXECUTION ORDER (ANNEX-1) was received by us on 15/08/2021 via the UETS e-notification system in the execution of the decrees regarding the money debt or the provision of collateral or the performance or non-performance of a work, the removal of the easement right or the usufruct right on the ship, and within the period (“Complaints made due to violation of the execution can be brought before the execution court indefinitely since they are related to public order” 8. HD. 23.05.2016 T. 25835/8996), our complaints against this bailiff action are presented below.
From the follow-up request (Annex-2) submitted by the counterparty (Creditor) to the Execution Directorate file and the documents (Annex-3), Ankara 2nd Labour Court, which is a reemployment case, dated 10/06/2019, 2019/….. E., 2019/….. As can be seen from the reasoned decision of the 2nd Labour Court of Ankara, which is a reinstatement case (ANNEX-4), it is necessary to STOP AND THEN CANCEL THIS EXECUTION PROCEEDING MADE IN VIOLATION OF THE FORECLOSURE AS IMMEDIATELY.
The judgement of the Local Court, which the other party has put into proceedings, DOES NOT INCLUDE AN EDA PROCEDURE. Because the case in which the reasoned decision is given is a reemployment case.
As it can be seen from the relevant paragraph of the reasoned decision of the Court, the so-called receivable items put into proceedings by the other party contain a DETERMINATION PROVISION, and AN EDA PROVISION THAT CAN BE MADE A GROUND FOR THE OPPOSING PARTY’S CLAIMS IS NOT IN THE REASONED DECISION. IT IS OBVIOUS THAT THE DETERMINATION PROVISIONS CANNOT BE THE SUBJECT OF A JUDGEMENT ENFORCEMENT PROCEEDING.
Pursuant to Article 38 of the BEC, the right to file an enforcement proceeding with a judgment belongs to the person in favour of the judgment or the document in the nature of a judgment, i.e. the person who has a judgment of performance.
A judgement can only be put into a judgement enforcement proceeding against the debtor against whom it contains a judgement of performance. IT IS OBVIOUS THAT THE FACT THAT A JUDGEMENT CONTAINS A PERFORMANCE CLAUSE MEANS THAT THE AMOUNT OF THE JUDGEMENT, FROM WHOM IT WILL BE COLLECTED AND TO WHOM IT WILL BE GIVEN ARE CLEARLY WRITTEN IN THE JUDGEMENT. It is also clear that the party in whose favour there is no execution clause in a court judgment cannot make a judicial proceeding against the other party. Both the DOCTRINE and the JURISDICTION have the same opinion on this matter. The Court of Cassation consistently renders decisions stating that judgements that do not contain an execution clause cannot be subject to judicial proceedings.
At this point, the established Court of Cassation Decisions are as follows:
“Administrative court judgments, which do not contain an execution clause in the direction of a liquid receivable and which are related to the cancellation of the transaction subject to the lawsuit, cannot be subject to judicial proceedings -except for the judicial expenses and attorney’s fee ruled in the judgment-” (8.HD.10.09.2013 T. 6366/11553)
“Determination judgements cannot be subject to enforcement proceedings before the judgement is finalised, as well as for requests such as trial expenses and attorney’s fees etc. written in the judgement, unless the judgement is finalised; the complaint on this issue is not subject to time, this issue will be directly taken into consideration by the enforcement court” (12th HD. 29.09.2011 T. 1687/17075; 06.12.2011 T.9558/26836)
In the light of all these Court of Cassation decisions and the opinions of the doctrine, the Opposing Party’s objection to the Determination Decision in the reasoned decision of the Local Court (IT IS OBVIOUSLY STATED IN THE REASONED DECISION THAT THIS DECISION IS A DETERMINATION DECISION, It is not in compliance with the law in the execution proceeding with writ of execution based on the determination with a bold character at the end of the article), and firstly, it is necessary to decide to stop the proceeding immediately and then to cancel the unfair and unjustified proceeding.
LEGAL REASONS :
İİK (16th, 18th, 38th and all other articles), HMK, Attorney Law and other relevant legislation
EVIDENCE :
1-Proceeding Request, Payment Order, Documents Submitted in the Annex to the Request for Proceeding and the Reasoned Decision of the Local Court,
1-Ankara ….. Enforcement Directorate’s 2021/….. E. numbered file subpoena,
2-Ankara 2nd Labour Court dated 10/06/2019, 2019/….. E., 2019/….. K. numbered reasoned decision and case file subpoena,
3-Witness (If deemed necessary, it will be presented later),
4-Oath (if deemed necessary),
5-Discovery (If deemed necessary),
6-Expert report (If deemed necessary),
7-All kinds of other evidence (We reserve our right to present evidence against the evidence to be presented by the other party).
CONCLUSION AND REQUEST:
For all the reasons explained above and to be taken into consideration ex officio by your Court, we request by proxy that the enforcement proceedings made in violation of the writ be STOPPED ASAP (primarily without collateral) until the decision on our complaint is made, and that as a result of the proceedings, the enforcement proceedings and the enforcement order made unfairly, without legal basis and in violation of the writ be cancelled, and that the judicial expenses, fees and attorney fees be charged to the other party. 16/08/2021
Complainant A….. B….. Acting Attorney
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