apart from the written application to the administration before the execution proceedings are initiated, it is not obligatory for the creditor’s attorney to submit a self-employment receipt for the payment of the receivable subject to the judgement… if the payment is not made within 30 days from the written application, the judgement proceedings can be initiated.
12th Civil Chamber 2018/6351 E. , 2019/4901 K.
“Case Law Text”
COURT :
Execution Law Court
Upon the request of the creditor to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the neighbourhood, and after listening to the report prepared by the Examining Judge … for the case file and after all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
In the application of the complainant debtor’s attorney to the execution court; In accordance with Article 28/2 of the Law No. 2577, the creditor’s attorney applied to the Ministries with a petition dated 17/02/2016 and requested the payment of their receivables, but since the documents required for payment were not attached to the petition and the figures in the petition were not compatible with the administrative court decision, the second petition and missing documents were submitted to the Ministries with a petition dated 21/03/2016, and the second petition and missing documents were submitted to the Ministries with a petition dated 21/03/2016.
In accordance with Article 28 of the Administrative Procedure Law, since the payment should not have been made within one month, the creditor’s attorney did not comply with these periods and requested the cancellation of the enforcement proceeding initiated on 21/03/2016, the court; It is seen that the first application of the creditor’s attorney was dated 17/02/2016 (the date of notification of the administration), but the missing documents were delivered to the institution on 21/03/2016 by the creditor’s attorney, and it was decided to cancel the proceeding due to the fact that the creditor’s attorney initiated the proceeding on 21/03/2016 without waiting for the 30-day legal period as required by 28/2 of the İYUK.
Article 28/2 of the Administrative Procedure Law No. 2577, as amended by Article 58 of the Law No. 6352; “… The amount awarded in cases whose subject matter requires the payment of a certain amount of money, and the attorney’s fee and trial expenses awarded in all kinds of cases, shall be deposited in the bank account number to be notified in writing by the plaintiff or his representative to the defendant administration, as of the date of this notification, within the framework of the procedures and principles specified in the first paragraph. If the payment is not made within the periods specified in the first paragraph, it shall be executed and enforced in accordance with the general provisions…”.
According to the aforementioned article of the Law, it is sufficient to apply to the Administration in writing, and it is not a matter of dispute between the parties that this application was made. The dispute centres on whether it is obligatory for the creditor’s attorney to submit a self-employment receipt for the payment of the receivable subject to the judgement, in addition to the written application before the execution proceedings are initiated. Since there is no special regulation in Article 28 of the Law No. 2577 on this issue, there is no need to wait for the process regarding the submission of the said receipt in order to put the judgement into proceedings.
In this case, the debtor’s first application date to the administration is 17/02/2016, and since the administration’s 30-day legal payment period has passed from this date until 21/03/2016, the court should decide to reject the complaint, but it is inappropriate to rule for the cancellation of the proceeding.
CONCLUSION : With the acceptance of the creditor’s appeal objections, it was unanimously decided on 20/03/2019, in accordance with Articles 366 of the EBL and 428 of the HUMK for the reasons written above, to return the prepaid fee upon request, to be open for decision correction within 10 days from the notification of the judgement.
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