T.C.
Supreme
General Assembly of Law
Base No:2010/0
Decision No:2010/138
K. Date:10.3.2010
(“….The plaintiff claimed that the defendant had not paid his debt to him, and also objected to the enforcement proceedings initiated, and asked that the cancellation of the appeal be decided on the collection of 40% compensation.
The defendant has requested the dismissal of the case.
By the court, the case has been decided upon the adoption of; after announcing judgment, the plaintiff, the defendant according to the population register, the diver surname not Dalkic has learned, the executive proceeding to the final decision of the defendant executed despite putting a bet because he couldn’t asked to be corrected Dalkic tavzihen the surname; by the court, the inner ra requests and surname of the defendant not to follow in the petition dalkic is shown as a diver, and in this way created the decision to refuse the request on the grounds that it was decided that for the amount; the judgment was appealed by the plaintiff.
Although the judge cannot make a final decision to change the original provision and eliminate the final provision, if there are ambiguous and ambiguous provisions in the decision made in accordance with the provision of Article 455 of the HUMK, he may make a decision to correct this ambiguity and ambiguity in a way that eliminates it. The plaintiff also wanted to clarify this aspect, which is doubtful, by asking that the defendant’s real surname be corrected in this way by betting that it is actually Dalkic, not Dalkic, in his concession petition. As a result, the court should determine whether the defendant’s real last name has been investigated, whether this last name used belongs to two separate people or to the defendant, and a decision should be made based on its result. The fact that the Court has established a provision in writing without conducting any examination and research in this direction.si is contrary to procedure and law and requires to be overturned.”)
Although the grounds were overturned and the file was returned to its place, the court resisted the previous decision at the end of the retrial.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
The case is related to the request to cancel the appeal, which is incorrect in the court’s decision
the surname of the alleged defendant was requested to be changed.
From the decision on the subject of the Tavzihe; the plaintiff’s defendant K. It is understood that he wants the appeal against the enforcement proceedings against the diver to be canceled; the court decides to accept the case, the decision is finalized without appeal; the defendant’s name is written as Dalkic in the title of the final decision.
The deputy plaintiff declared that they had learned that the defendant’s surname in the population register was Dalkic during the follow-up for the execution of the final decision and requested a concession on the grounds that the inaccuracy of the surname in the court’s decision made it impossible to execute the decision.
The decision of the local court to reject the request on the grounds that the case was concluded in accordance with the enforcement proceedings and the surname of the Diver written in the petition for action was overturned by the Special Department on the grounds described above.
The court decided to resist the previous decision on the grounds that no material errors were made, there were no contradictions in the provision, and the execution of the provision was started, the acting plaintiff appealed the provision.
The dispute is whether the decision is ambiguous in terms of the defendant’s last name and the 455th Amendment of the CMB. It is collected at the points where the conditions for the application of the article have been fulfilled.
455 of the Code of Civil Procedure No. 1086. In its article; ”If the judgment is ambiguous and informal or contains separate paragraphs, each of the two parties may ask for the concession of the divine and the prosperity of the tenacus until its execution” is included in the regulation.
Disclosure of the provision (tavzih), as specified in the said article, is a legal way used to reveal the true meaning of the provision if the provision is found to be incomprehensible (ambiguous) or has clearly incomprehensible (informal) and contradictory (mutual) paragraphs.
By way of explanation (tawzih), the provision given cannot be limited, expanded and changed. It is not possible to change the decision made unless the extradition of the trial is decided or if the decision is appealed or overturned. The amendment of the provisions cannot be considered an exception to this. The judge here is tasked with revealing the truth in order to prevent any other understanding of the verdict.
Tavzih, as a rule, happens only about the provision clause. In order to explain the justification of the provision, a compromise cannot be applied. However, if there is a contradiction between the provision paragraph and the justification, a compromise can be applied to resolve this contradiction (DEC 14.06.1967 and 1967/9-462 E: 300 K of the SSI).Notice No.)
A compromise solution can also be applied for decisions of the Supreme Court such as this. Although the appellant who claims that the provision has been changed by the decision of the Court of Cassation may apply for an appeal path, the appeals path cannot be applied to the General Assembly of Law against the decisions made by the Supreme Court of Cassation regarding the decision of the Court of Cassation (YHGK 15.03.1969 days and 1969/2-466 E.178 K.Notice No.)
There is no need to wait for the finalization of the provision in order to apply for a compromise path. A compromise may also be requested regarding the non-finalized cases until the execution (fulfillment) of the provision. But with a request for a compromise, the appeal period does not stop. After the execution of the ilam, it is possible to request a compromise of the provision until the ilam is fully executed. The judgment is accepted only by the court that has given it.
The judge cannot make a decision on the demands that he has forgotten in the judgment by way of tavzih and add it to his judgment. He cannot make a decision by making a compromise on the influx of power of attorney fees or interest that he forgot when making such a decision and include it in his decision. In the same way, the contradiction between a short decision and a reasoned decision cannot be resolved decisively.
The result of all these narratives is that the provision that has been finalized by the way of tavzih cannot be limited, expanded and changed (Prof. Dr. Baki Kuru Code of Civil Procedure, Sixth Edition 2001 volume 5, page 5270 et seq.)
In the light of the above explanations, when the samut incident is examined; it is clear that the execution of the verdict cannot be carried out due to confusion in the defendant’s surname; the court does not have the ability to execute the verdict; the decision made is ambiguous.
As such: the court; the person whose first name and date of birth are written in the powers of attorney, the petition, the decision, and especially the father’s name and date of birth in the land registry records; whether he is the same person as the person in the population register, whether these names indicate the same person should be decided according to the result of the investigation, while the decision to reject the request for a concession of the dubious provision in its current form is not capable of execution is not in accordance with the procedure and the law.
While the court’s decision to overturn the same points must be followed, it is against the procedure and the law to resist the previous decision to reject the bet and claim because no material error has been made.
Therefore, the decision to resist must be overturned.
CONCLUSION: With the acceptance of the appeals of the plaintiff’s deputy, the decision to resist is made in the decision to overturn the Special Chamber, and for the reasons shown above, the 429th Amendment of the CMB. Its DETERIORATION in accordance with the article was decided unanimously on 10.03.2010.
