T.C. COURT OF CASSATION 6. DEPARTMENT OF LAW Base. 2015/10497, Decision. 2016/2720, Date. 4.4.2016
• REMOVAL OF THE OBJECTION TO THE ENFORCEMENT PROCEEDINGS INITIATED FOR THE COLLECTION OF THE LEASE RECEIVABLE AND THE EVICTION CASE (IT IS ERRONEOUS THAT THE OBJECTION HAS BEEN COMPLETELY REMOVED DUE TO INCOMPLETE PAYMENT OF THE LEASE PRICE – THE OBJECTION MUST BE REMOVED FROM THE REMAINING PART OF THE LEASE RECEIVABLE / DEFAULT / INCOMPLETE DEPOSIT OF THE LEASE MONEY )
• THE TOTAL REMOVAL OF THE APPEAL IS ERRONEOUS (IT IS UNDERSTOOD THAT THE AMOUNT OF THE RENTAL AMOUNT IS MISSING FROM THE ATM OUTPUT ATTACHED TO THE APPEAL PETITION – SO THE CASE OF DEFAULT HAS OCCURRED / BUT THE APPEAL MUST BE REMOVED FROM THE DEDUCTION OF THE DEPOSITED MONEY AND THE PART OTHER THAN THE AMOUNT)
• REFUSAL OF THE EVICTION REQUEST MADE BEFORE THE EXPIRATION OF THE 30-DAY PAYMENT PERIOD (DUE TO THE EXPECTATION THAT THE PAYMENT PERIOD WILL EXPIRE – EARLY REQUEST FOR EVICTION FROM THE CREDITOR’S EXECUTIVE COURT / REFUSAL OF THE EVICTION REQUEST / REMOVAL OF THE OBJECTION TO THE ENFORCEMENT PROCEEDINGS INITIATED FOR THE COLLECTION OF THE RENT RECEIVABLE AND THE EVICTION CASE / RENT RECEIVABLE)
6098/m.315
2004/M.269/4
ABSTRACT: The case is related to the removal of the objection to the follow-up initiated for the collection of the lease receivable and the requests for the eviction of the lessor. The court decided to dismiss the defendant’s appeal and evict the lessor on the grounds that it was understood that the amount of the two-month lease amount to be paid was missing from the atm printout attached to the appeal petition, and therefore it was understood that the case of default had occurred.In the light of the above, it is not correct to remove the appeal altogether, while the deduction of the payment accepted by the court and the portion other than this amount should be removed from the appeal. It is also understood that with the payment order, the borrower is given a 30-day payment period.The creditor cannot request an eviction from the executive court without waiting for the expiration of this 30-day payment period.A request was made by the creditor to evict the executive court before the expiration of the 30-day payment period.It is necessary to decide on the refusal of the eviction request.

CASE: The above decision, the date and number of which were given by the executive court, was appealed by the defendant within the time limit, but all the papers in the file were read and discussed and considered as necessary:

DECISION : The case is related to the removal of the appeal against the follow-up initiated for the collection of the lease receivable and the demands for the eviction of the lessor. The court decided to accept the case, to remove the defendant’s objection and to evict the subject of the case from the real estate, and the decision was appealed by the defendant’s deputy.

1- ) In the examination of the defendant’s attorney’s appeals against the receivable;

There is no dispute between the parties regarding the 3-year lease agreement dated 12.9.2013, which is based on follow-up and based on the decisionthere is no dispute between the parties regarding the lease agreement for a period of 3 years. May April and May 2014, the plaintiff creditor requested the collection of TL 825.00 per month from the enforcement proceedings initiated on 7.5.2014, together with the processed interest of TL 1,650.00 on the rental price. The payment order has been notified to the debtor on 29.5.2014 and the debtor has made an objection during the period; 12.9.2013 on a lease agreement concluded by the creditor with the father, but of the lessor after the death of the heirs disagreed among themselves, a representative of the lease receivables subject to enforcement proceedings 12.5.2014 was paid to creditors on account of the work, accordingly, has stated that rent arrears. It is understood that TL 1,645.00 was paid to the Işbank account on 12.5.2014 with the explanation “… rent payment” from the receipt attached to the appeal petition. On appeal is filed, the plaintiff’s attorney, the defendant’s execution proceedings after 2 month’s rent as 12.5.2014 1.645,00 TL paid two month’s rent 1.650,00 TL to the bank, although the underlying lease cost of $ 5.00 as missing has been paid that the defendant committed the first ever payment, interest, costs and attorneys fees, which will be offset against the defendant’s objection objection on the grounds that the defendant’s unfair and is devoid of foundation, and demand that it be given to the decision to evacuate from the abolition of direct hires and has prosecuted. The defendant’s attorney defended the rejection of the case by stating that they had submitted the receipt for the payment to the file. The court decided to lift the defendant’s appeal and evict the lessor on the grounds that it was understood that the payment was 1.645,00 TL from the debit printout dated 12.5.2014 attached to the appeal petition, although the total amount of the two-month rent to be paid was 1.650 TL, that is, the payment was incomplete, so the case of default had occurred. In the light of the above, while the appeal should be dismissed over the deduction of the payment of TL 1,645.00 accepted by the court and the portion other than this amount, it is not correct to decide to remove the appeal altogether and decide on the execution-denial compensation over TL 1,650.00.

2- )As for the defendant’s attorney’s appeals for eviction;

The plaintiff creditor initiated enforcement proceedings on 7.5.2014 on the basis of the written lease agreement dated 12.9.2013, requesting eviction, and the payment order was notified to the defendant debtor on 29.5.2014. It is understood that the borrower was given a 30-day payment period with a payment order. I.I.K.article 269/1 of the Turkish Commercial Code 315 (BK260. ) in accordance with the article, the creditor cannot request an eviction from the executive court without waiting for the expiration of the 30-day payment period. On 19.6.2014, a request was made by the deputy creditor to release him from the executive court before the expiration of the 30-day payment period. For this reason, while it is necessary to decide on the rejection of the eviction request, it is also not correct to decide on the eviction in writing.

The decision should be overturned for these reasons.

RESULT : 1 and 2 above. HMK No. 6100 with the acceptance of appeals for the reasons described in the paragraphs.or temporary 3, which was added by Law No. 6217.according to the provisions of the article, HUMK.428 and IIK.of 366.according to the article, it was decided unanimously on 04.04.2016 to OVERTURN the decision and return the appeal fee received in advance to the appellant if requested.

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