T.C.
SUPREME
- law office
Main Number: 2013/13232
Decision No: 2014/1002
K. Date:23.1.2014
Upon request by the defendant for an appellate examination within the period of the Court decision with the date and number written above, the file related to this work was sent to the Department from the scene and the report prepared by the Examination Judge for the case file was listened to and all the documents in the file were read and examined, then the need for the work was discussed and considered:
decision
In the legal proceedings initiated by the creditor, it is observed that the debtor requested the removal of the seizure by claiming that his appropriate house was seized, the Court decided to lift the seizure by accepting the complaint of non-seizure, and the judgment was appealed by the creditor’s attorney.
IIK’s 82/12. according to the article, the debtor’s “suitable” house cannot be seized. Whether a residence is suitable for the condition of the debtor is determined according to the social status of the said person at the time of foreclosure and the needs of the debtor and his family. The term “family” here includes those who live under the same roof with the debtor and are his dependents. Those who become mandatory for execution by the court to live with the debtor mentioned it necessary to obtain proper compensation has been determined to housing experts after the sale if the value of the place is more than that attached to the abode of the sales price should be determined and agreed to the amount necessary to the above qualities should be left to the debtor, the remainder must be paid to the creditor. The properties and places in the home that exceed these criteria, as well as places outside a dwelling that includes rooms and halls that exceed reasonable dimensions and contain mandatory items for residence, are contrary to the purpose provided for in the article. The duty and title of the debtor does not require him to reside in a more magnificent abode than the one set out above.
In concrete cases, where the real estate is located meskeniyet claim subject to the executive and the debtor paid into the court of law through the appropriate determination of the value of the real estate home bilirkisilerce requested, the decision forming the basis for the complaint in the report subject to the value of the dwelling, 3 rooms 1 living room 75.000,00 TL, the borrower is forced to live with her mother and 2 children into a more modest home, which needed to be able to provide appropriate price 75.000,00 TL in the case the borrower is reported to be for the house into a proper home. The court found this report sufficient and decided to lift the seizure with the acceptance of the complaint.
In the social and economic situation research found in the file and commissioned by the court through the police, it was found that the debtor is a Bag -Kur pensioner and has a salary of TL 620.00, and the pension left over from the spouse of his mother, with whom he lives, is TL 650.00.
One of the witnesses heard in court, Semiha Çavdır, the mother of the debtor, stated that the houses in the neighborhood where they live are around 40,000.00 TL. When the mentioned issues are evaluated together, it is not considered correct to give credit to the expert report. Because, according to the statement of his mother, who was heard as a witness, the mother with whom the debtor lives is not obliged to look after him, since it was determined that he is receiving a pension, it is understood that the house subject to the complaint in which the debtor lives is about 40,000.00 TL, and the houses in the same vicinity are also in this amount.
Then, the work to be done by the Court; without taking into account that the main thing in the follow-up law is to ensure that the creditor receives his receivable, it is necessary to re-determine the value that he can acquire a smaller, suitable dwelling with more modest qualities both in Jul and in different districts. If this value is less than the value of the shame, the shame should be sold, the necessary price should be paid to the borrower to buy a suitable house, and the sale should be made not less than the amount that the borrower can buy a suitable house, while the provision facility in written form based on incomplete examination and insufficient report is inappropriate.
CONCLUSION: With the acceptance of the appeals of the creditor’s attorney, the Provisional 3 of the CCP numbered 366 and 6100 for the reasons explained in the judgment. article 428 of the HUMK No. 1086. in accordance with Article 388/4 of the HUMK by the parties. (HMK m.297/ç) and 366/3 of the IIK. in accordance with the articles of the Court of Cassation, it was unanimously decided on 23.01.2014 that a request for correction of the decision can be made against the announcement within 10 days from the notification of the Chamber’s decision.
