Request For Removal Of Attachment On Pension – Improper Service Of Process
Republic of Turkey
COURT OF CASSATION
21st CIVIL CHAMBER
CASE NO: 2017/6302
DECISION NO: 2018/747
DATE OF DECISION: February 5, 2018
>>REQUEST FOR LIFTING THE ATTACHMENT ON PENSION PAYMENTS – UNLAWFUL NOTIFICATION
7201/m.12
SUMMARY: The case concerns a request for lifting the attachment on pension payments.
Although the court ruled to dismiss the case on the grounds that the plaintiff did not file the case within the legal time limit after learning of the provisional attachment, it is incorrect to dismiss the case based on the date of learning, without considering that the payment order was not served in accordance with the procedure.
CASE: The plaintiff requested a decision to lift the attachment imposed on his retirement pension.
The court complied with the reversal and decided to reject the request as stated in its judgment.
Upon appeal of the judgment by the plaintiff’s attorney, it was determined that the appeal was filed within the time limit, the documents in the file were read in the report prepared, the matter was considered, and the following decision was made:
The case concerns the plaintiff’s request for the lifting of the attachment imposed on his retirement pension due to the premium debt owed to the institution by the third party … Ltd. Şti and the refund of the deductions made as of August 16, 2013, with interest.
The court ruled to dismiss the case. Upon the reversal decision of our Chamber dated 06/10/2015 and numbered 2015/8563-17782 E.K., this conclusion is found to be in accordance with the procedure and the law.
The records and documents in the file indicate that due to the premium debt owed by … Ltd. Şti to the institution for the months of 1997/5-11 and 1998/1-12, a provisional attachment order was issued on 25/02/ 2012, and that the plaintiff inquired about the nature of the deduction from his pension via email on 05/12/2012, whereupon the institution informed the plaintiff of the nature and amount of the debt and the relevant documents via email.
In the present case, the court ruled to dismiss the case on the grounds that the plaintiff, having learned of the provisional attachment in 2012, filed the present case through the communications court on 20/08/2013 and did not file the present case within the statutory period after learning of it. It is contrary to procedure and law to decide to dismiss the case on the basis of the date of learning, without taking into account that the payment order was not served in accordance with the procedure, and this is a reason for reversal.
The task at hand is to enter into the merits of the case and decide accordingly.
Therefore, the plaintiff’s appeals for reversal aiming at these aspects should be accepted, and the judgment should be reversed.
CONCLUSION: The judgment is REVERSED for the reasons stated above, and if requested, the appeal fee shall be refunded to the appellant. This decision was made unanimously on February 5, 2018.