T.C.
Supreme
General Assembly of Law
Main Number: 2010/0
Decision No:2010/138
K. Date:10.3.2010
(“….The plaintiff requested that the defendant did not pay the debt owed to him and that he objected to the enforcement proceedings initiated and that the cancellation of the objection be decided to collect 40% compensation.
The defendant wished the case to be dismissed.
The court decided to accept the case; after the verdict was finalized, the plaintiff learned that the defendant’s surname was Dalkic, not Dalkic, according to the population register, and although he put the finalized decision into execution, he could not execute it, the defendant’s surname was requested to be corrected as Dalkic by the court, on the grounds that the defendant’s surname was shown as Dalkic, not Dalkic, and the decision was formed in this way it was decided to reject the request for compensation; the verdict was appealed by the plaintiff.
Although the judge cannot make a compromise decision to change the original provision and eliminate the final provision, if there are ambiguous and consistent provisions in the decision made in accordance with the provision of Article 455 of the Code of Criminal Procedure, he may make a correction decision to eliminate this ambiguity and agreement. The plaintiff also requested clarification of this aspect, which is ambiguous, by requesting that the defendant’s real surname be corrected in this way by betting that the defendant’s real surname is Dalkic, not Dalgıç, in fact, in his tavzih petition. In this case, the court should investigate the real surname of the defendant, determine whether this surname used belongs to two separate people or the defendant, and a decision should be made according to its result. The fact that the Court has made a written judgment in this direction without conducting any examination and research.si is contrary to procedure and law and requires disruption.”)
The case was overturned on its grounds and the file was returned to its place, and the previous decision was resisted by the court at the end of the retrial.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:
The case is related to the request for cancellation of the appeal; the court is wrong in its decision
the surname of the alleged defendant was requested.
The subject of the decision; the plaintiff’s defendant K. It is understood that the court decided to accept the case and that the verdict was finalized without appeal; it is understood that the defendant’s name is written as Dalkic in the title of the finalized decision.
The plaintiff’s attorney stated that they had learned that the defendant’s surname in the population register was Dalkic during the follow-up for the execution of the finalized decision and requested a suspension on the grounds that the inaccuracy of the surname in the court decision made the execution of the judgment impossible.
The decision of the local court on the rejection of the request on the grounds that the case was concluded according to the enforcement proceedings and the surname of the Diver written in the lawsuit petition was overturned by the Special Chamber on the grounds described above.
The court decided to resist the previous decision on the grounds that there was no material error, there was no contradiction in the judgment, and the execution of the judgment was initiated, and the plaintiff’s attorney brought the judgment to the appeal.
The dispute is whether the decision is ambiguous in terms of the defendant’s surname and whether HUMK’s 455. It is collected at the points whether the conditions for the application of the article have been fulfilled or not.
455 of the Code of Civil Procedure No. 1086. In its Article; ”If the judgment becomes ambiguous and illegitimate or contains reciprocal clauses, each of the two parties may request the approval and tenakuz refinin of the judgment until its execution”.
Explanation of the judgment (tavzih), as stated in the said article, is a legal way to reveal the true meaning of the judgment if a judgment is found to be incomprehensible (ambiguous) or has clearly incomprehensible (informal wazih) and contradictory (mutenakiz) clauses.
By way of explanation (exegesis), the provision given cannot be limited, expanded or changed. It is not possible to change the verdict unless the decision is made to return the trial or the verdict is appealed and overturned. The attitude of the provisions cannot be considered as an exception to this. The judge is obliged to reveal the truth here in order to prevent the judgment from being understood otherwise.
Tavzih, as a rule, is only about the sentence clause. In order to explain the reason for the judgment, the tavzih path cannot be applied. However, if there is a contradiction between the provision paragraph and the justification, the remedy may be applied to eliminate this contradiction (14.06.1967 day and 1967/9-462 E: 300 K of the Dec.(number of signs)
Such as the Supreme Court decisions can also be applied to the tavzih way. Apply the amount of the provision was changed with the decision to appeal, claiming that although the Supreme Court against the decisions of the agency’s own decisions cannot be appealed to the General Assembly of law related to tavzih (yhgk 15.03.1969 of day and 1969/2-466 E.178 K.(number of signs)
There is no need to wait for the decision to be finalized in order to apply for the Tavzih path. Tavzih may also be requested about those who have not been finalized until the execution of the decision (fulfillment). But the appeal period does not stop with the request for concessions. After the execution of the judgment, it is also possible to request the approval of the judgment until the judgment is fully executed. The verdict is pronounced only by the court that issued it.
The judge cannot decide on the claims that he has forgotten in the judgment by way of tavzih and add it to the judgment. He cannot make a decision by tavzih way in the influx of proxy fee or interest that he has forgotten while making such a decision and include it in his decision. In the same way, the contradiction between the short decision and the reasoned decision cannot be resolved by the way of Decisiveness.
The conclusion that emerges from all these narratives is that the provision that has been finalized through tavzih cannot be limited, expanded or changed (Prof. Dr. Baki Kuru Hukuk Muhakemeleri Usulu, Sixth Edition 2001 volume 5, page 5270 et al.)
When samut is examined in the light of the above explanations, it is clear that the execution of the judgment could not be carried out due to the confusion in the defendant’s surname; the court’s judgment does not have the ability to execute; the decision given is ambiguous.
In this respect: The court should decide by investigating the issue of whether the person whose name and surname are written in the power of attorney, petition, decision and especially the father’s name and date of birth are the same person as the person in the population register, whether these names indicate the same person, while the decision to reject the request for an offer of the provision, which is ambiguous because it does not have the ability to execute in its current form, is not in accordance with the procedure and law.
While the court must comply with the decision to overturn, which points to the same issues, it is against the procedure and the law to resist the previous decision to reject the claim with a bet, since there was no material error.
Therefore, the decision to resist must be overturned.
CONCLUSION: With the acceptance of the appeals of the plaintiff’s attorney, the decision to resist was made in the decision to overturn the Special Chamber and for the reasons shown above in Article 429 of the HUMK. In accordance with the Article, it was decided unanimously on the day of 10.03.2010 to be overturned.
