04 Feb WAIVER OF CLAIM
T.C. THE DECISION OF THE SUPREME COURT
General Assembly of Law
Base: 1981/551
Decision: 1981/683
Date of Decision: 21.10.1981
DIVORCE CASE – WAIVER OF THE CASE – NO DECISION CORRECTION REVIEW CAN BE MADE ON THE CASE THAT HAS DISAPPEARED
SUMMARY: Since the plaintiff has waived his case, the case, which is the first condition of the divorce provision that has not yet been finalized, has disappeared. In the face of this situation, an examination cannot be made on the defendant’s request to correct the decision.
(1086 P. K. m. 95, 237, 427, 440)
Case: At the end of the divorce case between the parties; 8.4.1981 days and E of the General Assembly of the Supreme Court of Cassation on the approval of the decision No. 418-351 of the Fourth Civil Court of First Instance of Ankara, which was granted by resistance on the annulment, 3.6.1980 days and 418-351 days at the dec of the divorce case between the parties. 1981/2-2428, K. examination of decision No. 1981/279 through correction of the decision was requested by the defendant within the time limit, but the file was examined and discussed as necessary:
Decision: The plaintiff husband and his wife filed a divorce case against the defendant Nilgün due to severe lack of livelihood, and the court accepted the case and decided to divorce. This decision was overturned by the special chamber on the defendant’s appeal, the local court resisted its previous decision. Although the decision to resist was also appealed by the defendant’s witness, it was approved by the General Assembly of the Law and the defendant requested to correct the decision during the trial period. Before the consideration and decision of this request, the plaintiff husband informed that he had waived his case with a petition dated 20.10.1981, which had been signed. According to the fact that the plaintiff has waived his case, the case, which is the first condition of the divorce provision that has not yet been finalized, has disappeared. In the face of this situation, an examination cannot be made on the defendant’s request to correct the decision. On the other hand, as long as the divorce provision stands there, it is also legally impossible for the court to reconsider the case and make a new decision due to the waiver. In this regard, in order for the local court to make a decision on the waiver of the case, the consent decree must be lifted and the decision to resist must be overturned. As a matter of fact, the established practice of the Supreme Court is also on this path (11.4.1940) and the rationale for the Decision to Merge Case Law No. 70 HGK?, decision of 16.11.1966 day and No. 1438-290; 2.HD.decision No. 2645-4019 of the VCE of 17.6.1968 days)
In that case, according to the explanations made above; In order to make a decision on this issue after the conviction, since the plaintiff has informed that he has waived his case, the approval decree of the General Assembly of Law No. 8.4.1981 of the day and 1980/2-2428 of the merits, 1981/279 decision should be removed and the decision to resist the divorce should be overturned.
Conclusion: For the reasons described above, it was unanimously decided on 21.10.1981 to abolish the decree of approval No. 8.4.1981 of the General Assembly of Jurisprudence and No. 2980/2-2428, No. 1981/279 and to OVERTURN the court’s decision to resist on 21.10.1981.
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