If The Fees And Expenses Are Not Completed Within The Given Period, The Decision Will Be Deemed Not Appealed – The Court Should Take Action To Complete The Missing Fees
T.C. JUDICIARY
15th Civil Chamber
Basis: 2016/3455
Decision: 2016/3829
Date of Decision: 12.07.2016
ANNULMENT OF THE OBJECTION – IF THE FEES AND EXPENSES ARE NOT COMPLETED WITHIN THE GIVEN PERIOD, THE DECISION WILL BE DEEMED NOT APPEALED – THE COURT MUST TAKE ACTION FOR THE COMPLETION OF THE MISSING FEE – SENDING THE FILE TO OUR OFFICE
SUMMARY: It is regulated that if the fees and expenses are not completed within the given period, the decision will be deemed as not appealed. In order for the missing fees to be completed, the court must take action as specified in Article 434/III of the HUMK and then the file must be sent to our Chamber for appellate review.
(6100 S. K. Geç. art. 3) (2004 S. K. art. 67)
Case and Decision: The plaintiff … Metal and Furniture San. ve Tic. Ltd. Şti. and the defendant … Mobilya Sanayi ve Tic. A.Ş., the Supreme Court review of the judgment dated … day and numbered … given by the … Civil Judgeship of First Instance was requested by the defendant’s attorney, the papers in the file were read and discussed:
The court decided to partially accept the main case, to determine that the plaintiff is the main creditor of the defendant amounting to 206.038,86 TL in the proceeding file numbered … Esas of the … Enforcement Directorate, to cancel the objection, to continue the proceeding from where it left off, to reject the request for more, to take the execution denial compensation corresponding to 40% of the main receivable from the defendant and to give it to the plaintiff, and in the merged case, it was decided to dismiss the case, and the decision was appealed by the plaintiff’s attorney in the defendant-merged file.
While filing the petition for appeal by the plaintiff’s attorney in the defendant-merged file, a total fee of 3.655,00 TL was paid on 03.12.2015, including 136,00 TL fee for filing an appeal and 3.519,00 TL appeal decision fee (proportional).
From the examination of the appeal petition, it is understood that the plaintiff in the defendant-combined file has appealed the file in terms of the main case and the combined case. In this case, it is understood that only one appeal fee and one appeal decision fee (proportional) was collected, whereas separate appeal fee and appeal decision fee should have been collected for the original case and the combined case, and thus, the court has under-collected a total of 163.70 TL, which is 136.00 TL for the appeal fee and 27.70 TL for the appeal decision fee (lump sum) for the combined case.
Article 434/III of the Code of Civil Procedure No. 1086, which should be applied with the reference of the provisional Article 3 of the CCP No. 6100, stipulates that the necessary fees and expenses shall be paid in full when filing the appeal petition, if it is later understood that they have been underpaid, they must be completed within the 7-day definite period to be given by the judge or the president of the court who made the decision, otherwise the appeal will be deemed to be abandoned, and if the fees and expenses are not completed within the given period, it will be decided that the decision will be deemed not appealed. In order for the missing fees to be completed, the court must take action as specified in Article 434/III of the HUMK and then the file must be sent to our Chamber for appellate review.
Conclusion For the reasons explained above, it was unanimously decided on 12.07.2016 to RETURN the file to the local court in order to complete the missing appeal fee as specified in Article 434/III of the Code of Civil Procedure.
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