Waiver Of The Lawsuit – No Correction Of Decision Regarding The Disappeared Lawsuit
T.C. JUDICIARY
General Assembly of Civil Chambers
Basis: 1981/551
Decision: 1981/683
Date of Decision: 21.10.1981
DIVORCE CASE – WAIVER OF THE LAWSUIT – NO REVIEW OF THE CORRECTION OF THE DECISION ON THE CASE THAT HAS DISAPPEARED
SUMMARY: Since the plaintiff has withdrawn his lawsuit, the lawsuit, which is the first condition of the divorce judgment that has not yet been finalized, has disappeared. In this case, the defendant’s request for correction of the judgment cannot be examined.
(1086 S. Code Art. 95, 237, 427, 440)
Case: At the end of the divorce case between the parties; the review of the decision dated 8.4.1981 and numbered E. 1981/2-2428, K. 1981/279 of the General Assembly of Civil Chambers of the Court of Cassation regarding the approval of the decision dated 3.6.1980 and numbered 418-351 of the Fourth Civil Court of First Instance of Ankara, which was given through resistance upon reversal, was requested by the defendant within the period of time, the file was examined and the necessity was discussed:
Decision: The plaintiff husband filed a divorce case against his wife, the defendant Nilgün, on the grounds of severe incompatibility, and the court accepted the case and decided for divorce. This decision was reversed by the special chamber upon the appeal of the defendant, and the local court resisted its previous decision. Although the decision of resisting was also appealed by the defendant, it was approved by the General Assembly of Civil Chambers and the defendant requested a correction of the decision in due time. Before this request was examined and decided, the plaintiff husband declared that he waived his lawsuit with a petition dated 20.10.1981, whose signature was certified. Since the plaintiff has waived her lawsuit, the lawsuit, which is the first condition of the divorce judgment that has not yet been finalized, has disappeared. In this case, the defendant’s request for correction of the judgment cannot be examined. On the other hand, it is not legally possible for the court to reconsider the case and make a new decision due to the waiver as long as the divorce decree remains in place. In this respect, in order for the local court to make a decision on the waiver of the case, the judgment of confirmation must be revoked and the decision of resistance must be reversed. As a matter of fact, the established practice of the Court of Cassation is also in this direction (the justification of the Unification Decision dated 11.4.1940 and numbered 70; HGK decision dated 16.11.1966 and numbered 1438-290; 2nd HD decision dated 17.6.1968 and numbered 2645-4019)
In that case, according to the explanations made above; since the plaintiff has declared that he has withdrawn his lawsuit, the decision of the General Assembly of Civil Chambers dated 8.4.1981 and numbered 1980/2-2428 main, 1981/279 decision should be reversed and the decision of resistance for divorce should be reversed.
Conclusion For the reasons explained above, it was unanimously decided on 21.10.1981 that the decision of the General Assembly of Civil Chambers dated 8.4.1981 and numbered 1980/2-2428 main, 1981/279 should be revoked and the decision of the court to resist should be reversed.