Supreme Court 6th Law Office E. 2015/10497, K. 2016/2720, T. 4.4.2016
• REMOVING THE OBJECTION TO THE EXECUTION FOLLOWING STARTED FOR THE COLLECTION OF THE LEASES AND THE ACTION FOR EVACUATION (REACTION TO THE RESERVATION RESERVATION AGAINST RESERVATION AGAINST RESERVATION AGAINST THAT THE OBJECTION HAS BEEN REMOVED DUE TO THE MISSING PAYMENT)
• IT IS WRONG TO REMOVE THE OBJECTION FROM THE COMPLETE (THAT WAS DETECTED THAT THE TOTAL RENTAL AMOUNT IS MISSING FROM THE BANK’S OUTPUT ATTACHED TO THE APPEAL APPLICATION – THEREFORE, THE RESULT OF THE RESULT OF THE LOSS OF THE APPLICATION IS REALIZED.
• DISCLAIMER OF EVACUATION REQUEST MADE BEFORE THE 30 DAYS PAYMENT PERIOD IS FILLED (TO WAIT FOR THE EXPECTATION OF THE PAYMENT PERIOD – THE CREDIAN’S EARLY EVACUATION REQUEST FROM THE EXECUTIVE COURT) CAN BE RECEIVED/TO AGREE TO BE RECEIVED/TO AGREE TO BE RECEIVED/ON THE RESERVATION CLAIM
6098/M.315
2004/M.269/4
SUMMARY : The case is about the removal of the objection to the proceedings initiated for the collection of the rent receivable and the requests for the eviction of the lessee. The court decided to cancel the objection of the defendant and to evict the rented on the grounds that it was understood that the sum of the two-month rental amount to be paid was missing from the printout of the ATM attached to the petition of objection, and therefore the default phenomenon had occurred. While it should be removed, it is not correct to remove the objection altogether. In addition, it has been understood that the debtor has been given a 30-day payment period with the payment order. The creditor cannot request discharge from the enforcement court before the expiry of this 30-day payment period.
CASE: The above-mentioned decision, dated and numbered, given by the enforcement court, was appealed by the defendant in due time, and all the papers in the file were read and discussed and considered:
DECISION: The lawsuit is about the removal of the objection to the proceedings initiated for the collection of the rent receivable and the requests for the eviction of the lessee. The court decided to accept the case, to cancel the objection of the defendant and to evict him from the real estate subject to the lawsuit.
1- ) In the examination of the objections of the defendant’s attorney against the receivable;
There is no dispute between the parties regarding the 3-year lease agreement with the beginning of 12.9.2013, which is based on the follow-up and taken as a basis for the decision. The plaintiff creditor, with the enforcement proceedings initiated on 7.5.2014, demanded the collection of the monthly rental fee of 825.00 TL for the months of April and May 2014, 1.650.00 TL, together with the accrued interest. The payment order was notified to the debtor on 29.5.2014, and in the objection made by the debtor in due time; He stated that they concluded a lease agreement with the fathers of the creditor on 12.9.2013, but after the death of the lessor, the heirs could not come to an agreement among themselves. From the receipt attached to the objection petition, it is understood that a payment of 1,645.00 TL was made to İşbank’s account on 12.5.2014 with the explanation of “… rent payment”. In the lawsuit filed upon the objection, the plaintiff’s attorney stated that, after the execution proceeding, the defendant paid 1,645.00 TL for 2 months of rent on 12.5.2014, although the two-month rental amount was 1.650.00 TL, the rental amount deposited in the bank was 5.00 TL less. Claiming that the payment made by the defendant will be deducted primarily from the interest, expenses and attorney’s fees incurred to date, the defendant’s objection is unjustified and unfounded, and the defendant’s objection be lifted and the defendant’s eviction be decided from the leased property. The defendant’s attorney defended the rejection of the case by stating that they submitted the receipt of the payment to the file. The court decided to lift the objection of the defendant and to evict the rented person, on the grounds that, although the sum of the two-month rent to be paid was 1.650 TL, it was understood from the ATM printout dated 12.5.2014 that the payment was 1,645.00 TL, that is, the payment was incomplete, and therefore the case of default had occurred. given. In the light of what has been said, while the objection should be removed over the deduction of the payment of 1,645.00 TL, which is also accepted by the court, and the portion other than this amount, it is not correct to decide to remove the objection altogether and to award execution-denial compensation over 1,650,00 TL.
2- ) As for the objections of the defendant’s attorney regarding the eviction;
The plaintiff creditor, based on the written lease agreement dated 12.9.2013, on 7.5.2014 with a request for eviction.
started the proceedings and the payment order was notified to the defendant debtor on 29.5.2014. It is understood that with the payment order, the debtor is given a 30-day payment period. Pursuant to article 315 (BK260.) of the TCO, which should be applied with the reference of article İ.İ.K.269/1, the creditor cannot request discharge from the enforcement court without waiting for the expiry of the 30-day payment period. Before the expiry of the 30-day payment period, the creditor’s attorney filed a request for eviction from the enforcement court on 19.6.2014. For this reason, it is not correct to decide to evacuate in writing, while the rejection of the request for eviction should be decided.
For these reasons, the decision should be overturned.
CONCLUSION: With the acceptance of the appeal objections for the reasons explained in the 1st and 2nd paragraphs above, taking into account the provision of the provisional article 3 added to the HMK No. 6100 with the Law No. 6217, the decision will be overturned in accordance with the 428th article of the HUMK and the 366th article of the EBL. It was unanimously decided on 04.04.2016 that he be extradited to the person.
