Summary:
before or after the completion of the follow-up, the falsification of the deed subject to follow-up is alleged, HMK 209. termination of follow-up in accordance with the article does not lead to consequences. The aforementioned provision provides that the deed cannot be based on any process in relation to cases in general courts, it cannot be used as evidence with another expression, and it has no effect on enforcement proceedings.
T.C.
Supreme
- law office
Base No:9285/2014
Decision No:2014/11622
K. Date:21.4.2014
Before or after the completion of the follow-up, the falsification of the deed subject to follow-up is alleged, HMK 209. termination of follow-up in accordance with the article does not lead to consequences. The aforementioned provision provides that the deed cannot be based on any process in relation to cases in general courts, it cannot be used as evidence with another expression, and it has no effect on enforcement proceedings. In the concrete case, it is understood that the Commercial Court of First Instance has decided to reject the request to stop the follow-up of the injunction in the case. In that case, the court must accept the complaint.
CASE : the above date and number within hours of the court’s decision in writing upon request by the creditor temyizen this audit work-related files from the scene have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed:
DECISION: The creditor initiated a follow-up against the debtors by means of foreclosure specific to foreign exchange notes as bonds, the follow-up was finalized, H. from the debtors. T. B.the Enforcement Directorate requested that the prosecution be stopped due to the fraud case filed with the Denizli Criminal Court of First Instance related to the deed, the basis of the prosecution by applying to the Enforcement Directorate of HMK. it is understood that the proceedings have been stopped in accordance with Article 209 of the law, the creditor’s deputy has applied to the court for a complaint against this decision, and the court has decided to dismiss the complaint.
Enforcement and bankruptcy law is the procedural law of enforcement and bankruptcy proceedings. The purpose of this branch of law, creditors of the debtor for the recovery that will follow on the one hand or take out of the third person they could take to eliminate the difficulties, on the other hand, the pursuit of legal remedies against the debtor twisted itself to find the following to ensure protection, in the meantime, the chase, to protect the interest of third parties affected, while carrying out the following procedures is to prevent the violation of human rights and freedoms. The most important source of enforcement bankruptcy law is the Enforcement and Bankruptcy Code, and this Law regulates the procedural provisions that must be applied from enforcement and bankruptcy proceedings to collection.
The Civil Procedure Code No. 6100 may be applied in cases where there is no provision in the Enforcement And Bankruptcy Code, but there is an explicit reference in the Enforcement And Bankruptcy Code (such as IIK 50, 68/a-4) or there is no violation of the special or general provisions of this law ( compulsory litigation friendship). In light of these principles, HMK ’s 209/1. the effect of the article on non-drug enforcement proceedings should be evaluated. According to this article, “when the article or signature on an ordinary deed is denied, that deed cannot be based on any transaction until a decision is made on it.” There is no provision in the Enforcement and Bankruptcy Code regarding the fact that this article should be applied in enforcement proceedings.
Objection to the signature under the subject-of-follow exchange notes in the follow-up by way of foreclosure specific to foreign exchange notes, IIK’s 170. since it is specifically regulated in Article 209 of the next general law, the CMB, on the claim of signature denial. the article cannot be applied. Signature objection, Article 170/1 of the IIK. in accordance with the article, the execution does not stop the follow-up procedures other than the sale. However, the executive court may decide to temporarily halt the proceedings until its decision on the appeal (IIK 170/2).
On the other hand, if his claim is based on a reason other than his signature objection (in the article), our Department is subject to HMK’s 209 as there is no regulation in the Enforcement and Bankruptcy Code. while he believes that Article 169 / a of the IIK should be applied, by changing the case law later, his claim in the article on the promissory note is an objection to the debt and this issue is regulated in Article 169 /a of the IIK, 209 of the HMK. the opinion that the article has no place of application in this respect has been adopted.
As the executive court binds the objections and complaints before it to a final decision in terms of follow-up law by applying the special procedural rules set out in the Enforcement and Bankruptcy Code, the decisions of the said court, as a rule, do not have a material final decision. Therefore, during the examination of the objection to the debt or signature, it cannot decide whether to stop the proceedings in the general courts as to its claim, nor can it decide whether to stop the proceedings. Just the first.No. 169/a-2. in accordance with the article, he may decide to successfully stop the enforcement proceedings until his decision on the merits of the appeal. The fact that a decision has been made by the executive court regarding the receivable to be followed up does not prevent lawsuits to be filed in general courts about the same receivable.
72 of the IIK, which is filed as a debtor. it is a case within the scope of the article and enforcement proceedings can be stopped by an injunction decision to be taken from the court in accordance with the procedure in the said article. as for the forgery, the complaint filed with the public prosecutor’s office for the same reason and the lawsuit filed in the criminal court will not stop the enforcement proceedings spontaneously and the pending matter cannot be done. However, if an injunction is issued by the public prosecutor’s office or the criminal court, the enforcement proceedings may be stopped.
In accordance with the principles and rules described above, the claim of falsification of the deed subject to follow-up before or after the completion of the follow-up is made in accordance with Article 209 of the HMK. termination of follow-up in accordance with the article does not lead to consequences. The aforementioned provision provides that the deed cannot be based on any process in relation to cases in general courts, it cannot be used as evidence with another expression, and it has no effect on enforcement proceedings.
It is understood that in the concrete case, the Commercial Court of First Instance decided to reject the request to stop the follow-up of the injunction in his case.
In that case, Denizli 5, when the court must accept the complaint. Criminal Court of First Instance and Denizli 3. The basis of follow-up in the Court of First Instance is the forgery of the deed, so the enforcement directorate is HMK. No. 209. the provision to dismiss the complaint on the grounds that there are no irregularities in stopping the enforcement proceedings in accordance with the article is invalid.
CONCLUSION : The decision of the court on the acceptance of the creditor’s appeals for the reasons written above is in accordance with Article 366 of the IIK and Article 428 of the IK. according to the articles, the refund of the fee received in advance upon request was decided by a majority vote on 21.04.2014, with the path of decision correction open within 10 days from the notification of the decision
