- Law Office
Base Number: 2016/12372
Decision Number: 2018/4208
“Justice Text”
COURT: FAMILY COURT
As a result of the court’s judgment of the action for annulment of the objection between the parties, upon the appeal by the defendant within the time limit of the decision to accept the action; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was given:
Y A R G I T A Y A R A R I
Plaintiff; that they divorced with the defendant, that in accordance with the protocol approved by the court, a monthly alimony of 3.000.00 TL was awarded for the benefit of the defendant. With the request for the collection of the maintenance fees for the months 2010 and 03/05-06/2013 … Anadolu 24. Enforcement Directorate initiated proceedings against him with the file numbered 2013/17558, filed a lawsuit for the cancellation of the most demanded part of the execution order, that the Anatolian 5th Enforcement Law Court With the decision numbered 2013/598 with the main 2014/50 decision number, it was decided to reject the case with the mention that the amount sent in the money order was not specified as alimony payment, that he had to pay the entire amount subject to the follow-up, and therefore the plaintiff became rich without any reason, this time the collection of 9,925.00 TL, which was paid extra to the defendant. With the purpose of … Anadolu 22. Execution directorate’s file numbered 2014/19570 and proceedings against the defendant through execution without judgment. claiming that it started a p
Defendant; lodged an objection to the pending appeal and requested that the case be dismissed.
By the court; acceptance of the case; Defendant- debtor… With the cancellation of the objection made by Anadolu 22. Enforcement Directorate to the file no. 2014/19570, the continuation of the proceedings, the collection of the execution denial indemnity not less than 20% of the receivable from the defendant, the judgment was appealed by the defendant in due time.
Case; It is related to the request for annulment of the objection to the execution proceeding without judgment, which was initiated against the alimony creditor for the purpose of collecting the receivable, based on the legal ground of unjust enrichment with the claim that the alimony obligee made repeated alimony payments.
1) According to the articles in the file, the evidences on which the decision is based and the legally required reasons, and in particular that there is no inaccuracy in the evaluation of the evidence, the defendant’s other appeal objections that fall outside the scope of the paragraph below should be rejected.
2) In concrete conflict; the plaintiff claimed that the alimony debt was paid repeatedly, and the defendant argued that the amount transferred to him through the bank was not in return for alimony.
It is obligatory to include a clear reference to which receivable is made in the payment documents. However, it is seen that there is no explanation in the receipt within the scope of the file regarding the transfer made by the plaintiff.
However, it should be noted right away that; As a rule, remittance is a means of payment and shows that an existing debt has been paid. The person sending the money order must prove the contrary of the presumption expressed. In this case, the burden of proving the loan relationship rests with the plaintiff. In the money transfer receipt on which the claimant relied as evidence, there is no explanation as to why the money was sent, and as stated above, it is not suitable for concluding that it was sent for the purpose of paying the alimony debt on its own. As such, the aforementioned receipt is not sufficient to prove the claim and cannot be accepted as the beginning of written evidence.
In this respect; Since the court could not prove that the amount sent to the defendant by money order was sent as a deduction for the accumulated alimony debt, the decision to accept the case as written above was not correct due to an erroneous assessment, while the case should be rejected, and the decision had to be reversed.
3) According to acceptance; As for the defendant’s appeals against the execution denial compensation;
Although execution-denial indemnity has been ruled against the defendant; Since the existence and amount of the receivable subject to the action for annulment of the objection can be determined by the trial, it was not right to accept the receivable as liquid and to award the execution denial indemnity in accordance with the 67th article of the EBL, and this issue necessitated reversal.
CONCLUSION: For the reasons explained in the first paragraph above, the defendant’s other appeal request was REJECTED, for the reasons explained in the second and third paragraphs, the verdict was quashed for the benefit of the defendant pursuant to Article 428 of the HUMK. It was unanimously decided on 18.04.2018, with no way of rectification, pursuant to Article 440 of the HUMK numbered 1086 with reference to it.
