Summary:

the claim of falsification of the deed subject to follow-up before or after the finalization of the follow-up is made by HMK 209. it does not result in the cessation of follow-up in accordance with the article. The said provision stipulates that the deed cannot be used as evidence in any other way, nor can it be used as evidence in relation to cases in general courts, and has no effect on execution proceedings.

T.C.
Supreme
12. Legal Department

Principal No: 2014/9285
Decision No: 2014/11622
K. Date: 21.4.2014

The claim of falsification of the deed subject to follow-up before or after the finalization of the follow-up is made by HMK 209. it does not result in the cessation of follow-up in accordance with the article. The said provision stipulates that the deed cannot be used as evidence in any other way, nor can it be used as evidence in relation to cases in general courts, and has no effect on execution proceedings. In the concrete case, it is understood that the Court of First Instance has decided to reject the request for a halt to follow-up in the case. In that case, the complaint must be accepted by the court.

Case: within the period of the court decision with the date and number written above, the examination of the appellant was sent to the office from the file site upon request by the creditor and after hearing the report prepared by the audit judge for the case file and reading and reviewing all documents in the file, the work was discussed and considered:

Decision: the creditor initiated a follow-up against the debtors by means of lien specific to the bills of exchange, and the follow-up was finalized. T. B.the execution Directorate requested that the follow-up be stopped due to the forgery case filed with the Denizli Criminal Court of First Instance on the follow-up basis deed by applying to the execution directorate HMK. it is understood that the proceedings have been halted in accordance with Article 209 of the nun, against this decision the creditor’s attorney has applied to the court to file a complaint, 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 is to eliminate the difficulties that may arise from the debtor or third parties in order for the follow-up creditor to receive, on the other hand to find legal remedies to protect the follow-up debtor against malicious follow-up, Meanwhile to protect the interests of third parties affected by follow-up, and to prevent the violation of human rights The most important source of execution bankruptcy law is the execution and Bankruptcy Law, which regulates the procedural provisions that must be applied from execution and Bankruptcy follow-up to collection.

The law of Civil Procedure No. 6100 may be applied in cases where there is no provision in the law of execution and bankruptcy, but in cases where there is a clear reference in the law of execution and Bankruptcy ( e.g. IIK 50, 68/a-4 ) or where there is no violation of the special or general provisions of this law ( mandatory litigation friendship). 209/1 of HMK in light of these principles. the effect of the clause on follow-up of execution without a warrant should be evaluated. According to this article, “when a written or signature in an ordinary deed is denied, that deed cannot be taken as a basis for any transaction until a decision has been made on this matter.” There is no provision in the enforcement and insolvency law regarding the application of this clause in enforcement proceedings.

The objection to the signature under the foreign exchange certificate subject to follow-up, in the follow-up to the follow-up made by the lien of the foreign exchange promissory notes is 170 of the iik. as specifically regulated in Article 209 of Humk, the subsequent general law, on the claim of signature denial. the clause cannot be applied. Signature objection, iik 170/1. it shall not cease execution follow-up proceedings other than the sale in accordance with the clause. However, the execution court may decide to temporarily halt the proceedings until its decision on the appeal ( IIK 170/2 ).

On the other hand, if the claim is based on a reason other than the signature objection ( in the article), our office has no regulation in the enforcement and Insolvency Act of HMK 209. while considering that the article should be applied, the case law was later amended and the claim in the article on the deed is objectionable to the debt and this issue is regulated in Article 169/a of the IIK, HMK 209. in this respect, the opinion that the article has no place of application has been adopted.

The court of execution, appeals and complaints before the execution and Bankruptcy Law by applying the special rules of procedure in terms of follow-up law, the decisions of the said court as a rule do not have a final provision in the material sense. For this reason, he cannot make pending cases in the general courts as a matter for his claim during the examination of the objection to the debt or signature, nor can he decide to stop the follow-up. Just the first.nun 169 / a-2. in accordance with the article, it may decide to suspend the execution proceedings until it decides on the merits of the appeal. The fact that a decision has been made by the execution court regarding the receivables subject to follow-up does not prevent the prosecution of the same receivables in the general courts.

Opened as a debtor, iik’s 72. it is a case within the scope of the article and execution proceedings can be halted by the decision of the injunction to be taken from the court according to the procedure in the article mentioned. as a result of falsification, the complaint made to the public prosecutor’s office for the same reason and the case filed in the Criminal Court will not stop the execution proceedings by itself and no pending matter can be made. However, execution proceedings can be halted if an injunction is decided by the public prosecutor’s office or the Criminal Court.

In the light of the principles and rules described above, the claim of the forgery of the deed subject to follow-up before or after the finalization of the follow-up is referred to in the Article 209 of HMK. it does not result in the cessation of follow-up in accordance with the article. The said provision stipulates that the deed cannot be used as evidence in any other way, nor can it be used as evidence in relation to cases in general courts, and has no effect on execution proceedings.

In the concrete case, it is understood that the Court of First Instance decided to reject the request for a halt of proceedings in its case.

In that case, the court should accept the complaint should Denizli 5. Criminal Court of First Instance and Denizli 3. As the falsification of the deed is suggested in the court of first instance, the basis of follow-up is HMK by the execution Directorate. nun 209. the provision for dismissal of the complaint on the grounds that there are no irregularities in the cessation of execution proceedings in accordance with the article is not accurate.

Conclusion: 366 of iik and 428 of Humk for reasons written above, with the acceptance of the appeal appeals of the creditor and the court decision. in accordance with its articles ( deterioration ), it was decided by a majority on 21.04.2014 to return the mortar received in advance upon request, with the way of Correction of the decision being clear within 10 days from the notification of the decree.