Republic of Turkey
Court of Cassation
12th Civil Chamber
Case No: E. 2024/8310
Decision No: K. 2025/1835
Date: 03.03.2025
Upon the request for appellate review of the decision rendered by the Regional Court of Appeal within the prescribed period by the complainant-third party, the case file was sent to the chamber, and after the report prepared by the Rapporteur Judge was heard and all documents in the file were examined, the matter was discussed and considered as follows:
The complainant-third party applied to the Enforcement Court, claiming that an attachment was placed on the independent unit registered at ... parcel, ... block, ... neighborhood, ... district, ... province; that the advance payment for sale, which was due by 08.03.2023 according to the Sale Expenses Tariff, was not deposited; and therefore, no valid request for sale was made within the time limit, and the attachment should be lifted pursuant to Articles 106-110 of the Enforcement and Bankruptcy Law (EBL). The First Instance Court rejected the complaint, stating that the attachment had been renewed on 16.11.2015, the sale expenses had been deposited on 11.11.2015, the sale request was timely, and the attachment had not lapsed. The Regional Court of Appeal also dismissed the appeal, considering the provisions of Temporary Article 18 of the EBL regarding attachments made before the transition to electronic sale applications, and this decision was further appealed.
In the Ankara ... Enforcement Directorate case file, it was determined that the creditor ... initiated a collection with judgment against ...; part of the receivable was assigned to another creditor after the initiation; the attachment on the independent unit at ... parcel, ... block, ... neighborhood, ... district, ... province was placed by the creditor company on 16.11.2015, with 1,000 TL advance payment deposited; a sale request was made on the same day; another assignment creditor placed an attachment on 06.05.2019, with a sale request on 05.07.2019; the complainant-third party acquired ownership on 11.06.2020. Following the 7343 numbered law effective 30.11.2021, amendments to Articles 106 and 110 of the EBL required advance deposit of all sale expenses with the sale request. Temporary Article 18 clarified that for attachments made before the electronic sale system, the prior rules apply, and expenses must be deposited within one year of the tariff coming into force, otherwise the sale request is deemed invalid.
Since in this case the sale was requested before 08.03.2022 and the expenses were not fully deposited, the complaint should have been accepted and the attachments dated 16.11.2015 and 05.07.2019 lifted. The written ruling was therefore incorrect, and it was necessary to annul the Regional Court of Appeal’s decision and reverse the First Instance Court’s decision.
Conclusion
The appeal of the complainant-third party is accepted. For the reasons stated above, pursuant to Article 364/2 of the amended EBL via Law No. 5311 and Article 373/1 of the Code of Civil Procedure (Law No. 6100), the Regional Court of Appeal decision is ANNULLED, the First Instance Court decision is REVERSED, the advance appeal fee is to be refunded upon request, and the file is sent back to the First Instance Court, with a copy to the Regional Court of Appeal. Unanimously decided on 03.03.2025.
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