The Payment After The Follow-Up Is A Partial Payment And The Balance Debt Should Be Calculated By Deducting The Interest, Execution Attorney Fee And Follow-Up Expenses
Summary: Since the debtor’s payment is a payment after the enforcement proceeding and is a partial payment, it will be taken into account in the calculation of the balance debt by the enforcement directorate by first deducting the accrued interest, enforcement attorney fee and enforcement costs in accordance with TCO 100. Since there is no payment before the execution, there is no need to correct the execution order in terms of this amount. Although it is not correct for the court to reject the objection with the written justification while the objection should have been rejected with the stated justification, since the request was rejected as a result, the correct decision should be approved as a result.
Republic of Turkey Court of Cassation 12th Civil Chamber E: 2018/7611 K: 2018/12418 K.T.: 28.11.2018
COURT :Enforcement Law Court
Upon the request of the debtor 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 relevant file, 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 matter was discussed and considered:
The debtor’s attorney stated that an execution proceeding with judgment was initiated against his client administration based on the judgment of the … 1st Administrative Court No. 2014/612 Decision No., and that the debt subject to the proceeding was paid on 24/09/2014 upon the application made by the creditor’s attorney in accordance with Article 28 of the Administrative Procedure Law, and that the execution was suspended in accordance with Article 33 of the BEC due to redemption. Article 28/1-2 of the Administrative Procedure Law No. 2577, the court decided to suspend the execution, and upon the appeal of the judgment by the creditor, the Chamber ruled that there was no irregularity in the initiation of enforcement proceedings due to the fact that the administration did not make a payment in due time, and that there was no irregularity in the initiation of enforcement proceedings due to the debtor’s payment objection based on Article 33 of the EBL. As a result of the application made by the creditor’s attorney pursuant to Article 28/1-2 of the Administrative Procedure Law No. 2577, it is understood that there is no irregularity in the initiation of enforcement proceedings due to the fact that the administration has not made a payment within the time limit, and that the debtor’s objection to the payment based on Article 33 of the EBL was decided to be reversed by the court on the grounds that a hearing should be opened by the court regarding the payment objection based on Article 33 of the EBL, and after obtaining the statements of the parties and the submission of the evidence, an expert examination should be made if necessary, and a decision should be made according to the result to be formed, and the court decided to reject the objection by complying with the reversal order, and the decision was appealed by the debtor.
Article 100 of the T.B.K. No. 6098 (Former BK No. 84 of the former BK No. 818) stipulates that “If the debtor is not late in paying interest or expenses, he has the right to deduct the partial payment from the main debt”.
In the concrete case; … With the decision of the 1st Administrative Court dated 30/06/2014, a proceeding with judgment was initiated on 23.09.2014 for the collection of pecuniary and non-pecuniary compensation, trial expenses and attorney’s fee ruled against the debtor administration, the payment order document prepared by the general directorate of accounting as a result of the debtor institution’s internal correspondence was dated 24. 09.09.2014, the execution order was served on 09.10.2014, the creditor declared the external payment made on 01.10.2014 and requested the execution directorate to issue a memorandum for the balance receivable on 08.10.2014.
In this case, since the debtor’s payment is the payment after the enforcement proceeding and is a partial payment, pursuant to Article 100 of the TCO, it will be taken into account in the calculation of the balance debt by the enforcement directorate by first deducting the accrued interest, enforcement attorney fee and enforcement costs. Since there is no payment before the execution, there is no need to correct the execution order in terms of this amount. Although the court should have rejected the objection with the stated reasoning, it is not correct to reject it with the written reasoning, but since the request was rejected as a result, the correct decision should be approved as a result.
CONCLUSION: It was unanimously decided on 28/11/2018 that the debtor’s appeal objections were rejected and the decision of the court, which was correct as a result, was APPROVED in accordance with Articles 366 of the EBL and 438 of the HUMK for the reasons written above, that there is no need to charge a fee, and that the way of correction of the decision is open within 10 days from the notification of the judgment.