Sample Court Of Cassation Decision On The Prevention Of Hand Throwing Case
T.C YARGITAY 4th Civil Chamber Esas: 2019/ 11656 Decision: 2020 / 2597 Decision Date: 18.02.2020
SUMMARY: It was not considered correct not to consider that the parties should be asked when the immovable property subject to the lawsuit was actually seized (in months, days and years), and if it is understood that the date of seizure to be determined is between 09.10.1956 and 04.11.1983, a flat fee should be awarded, and if it is understood that the date of seizure is after 04.11.1983, a proportional attorney fee and proportional fee should be awarded.
(1086 S. Code Art. 428)
At the end of the trial held due to the lawsuit between the parties for the collection of the price of the immovable property seized without expropriation: The Supreme Court of Appeals has been requested to review the judgment with the petitions submitted by the attorneys of the parties, and after the documents in the file were read and the dispute was understood, the necessity was discussed and considered:
DECISION
The lawsuit is related to the claim for the collection of the price of the immovable property seized without expropriation.
The court made an investigation and judgment in accordance with the reversal decision and the decision was appealed by the attorneys of the parties.
Although the court complied with the reversal order, the requirements of the reversal were not fully fulfilled. Namely;
1) Considering that the part of the immovable property subject to the lawsuit was legally seized with the interim decision dated 11.01.2017, the court should award the price of 445,63 m² of the part that was actually seized as a road, while the decision should be made in a way that includes the seized parts and exceeds the request,
2) According to the decision numbered 177 of the CCP No. 6100 and the decision of the General Assembly of the Court of Cassation Unification of Jurisprudence dated 06/05/2016 and numbered 2015/1 Main – 2016/1 Decision, it is not possible to increase the result of the claim by amendment after the reversal. Excess rights must be requested by filing an additional lawsuit.
In this respect, while it is necessary to decide on the amount of expropriation without expropriation demanded by the lawsuit petition, to decide as written,
3) Failure to consider that the encumbrance on the subject immovable should be reflected in the price,
4) Failure to consider that the parties should be asked when the immovable property subject to the lawsuit was actually seized (in months, days and years), and if it is understood that the date of seizure to be determined is between 09.10.1956 and 04.11.1983, a flat fee should be awarded, and if it is understood that the date of seizure is after 04.11.1983, a proportional attorney fee and proportional fee should be awarded,
It was not deemed correct.
Since the appeal objections of the attorneys of the parties are appropriate, it was unanimously decided on 18.02.2020 to VACATE the judgment in accordance with Article 428 of the Code of Civil Procedure for the reasons explained, to refund the prepaid appeal fees of the parties upon request and to register the appeal fees to the Treasury. (¤¤)
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