T.R. SUPREME COURT
- Legal Department
Basis: 2013/18150
Decision: 2014/4386
Decision Date: 26.02.2014
ACTION FOR CANCELLATION AND REGISTRATION – KETMİ VERESE – JURISDICTION TO A SECTIONAL JURISDICTION OF ATTORNEY’S FEE IN THE CONSOLIDATED CASE, ACCORDING TO THE DEFENDANT’S AGREEMENT AT THE FIRST HALL WHERE THE DEFENDANTS REPRESENT THE CASE AT THE FIRST HALL, THE JURISDICTION OF THE JURISDICTION
SUMMARY: The main and conjoined case is about the title deed cancellation and registration request based on legal grounds. In the main case, the defendant V. before the first hearing of the case; In the merged case, since the defendants accepted the case in the first session in which they were represented by attorney, one-half of the attorney’s fee should be awarded in the original and the combined case.
(1136 S. K. Art. 166)
Litigation: At the end of the title deed cancellation and registration lawsuit, which was conjoined between the parties, the decision of the local court regarding the acceptance of the original and the combined action was appealed by the attorney of the plaintiffs within the legal period, and the file was examined, the report of the Investigation Judge B. B. was read, his explanations were heard, the need was discussed;
Decision: The main and conjoined case is about the deed cancellation and registration request based on legal grounds.
The court decided that the original and consolidated lawsuits were accepted on the grounds that the certificate of inheritance, which constituted the basis of the records on behalf of the parties, was canceled and the shares of the heirs were redetermined, and that there was no need to establish a provision on the attorney’s fee; The provision was appealed by the plaintiffs’ attorney for the attorney’s fee.
As known; Provision of Article 6 of the Minimum Attorneyship Fee Tariff .
In the concrete case, the preliminary examination report was not prepared by the court in the original and consolidated case, the lawsuit petition in the main case was served to the defendant V. on 27.04.2012 and the defendant V. accepted the case with a reply petition dated 10.05.2012 before the first session (28.06.2012). have done; In the merged case, the defendants were not notified of the lawsuit petition (the decision to merge was only notified to one of the defendants Hüseyin on 20.03.2013), and in the hearing dated 28.03.2013, the defendants, Atty. They were represented by A. E. by submitting their power of attorney, and in the same hearing, the attorney of the defendants stated that he repeated the reply petition, which includes the letter of acceptance dated 10.05.2012.
As such; in the main case, the defendant V. before the first hearing; In the merged case, since the defendants accepted the case in the first session in which they were represented by their attorney, it is not correct that a written decision should be made in the original and the combined case, while ½ of the attorney’s fee should be awarded.
Conclusion: The appeal objections of the plaintiffs’ attorney are valid. With its adoption, it was unanimously decided on 26.02.2014 that the judgment be OVERFINED, pursuant to Article 428 of the HUMK No. 1086 (by sending the provisional article 3 of the Law No. 6100) and that the advance fee be returned to the appellant.
