12th Law Office
Principal Number: 2019/7271
Decision Number: 2019/9780
“Justice Text”
COURT: Enforcement Civil Court
Upon the request of the creditor on appeal, the file regarding this matter was sent to the office within the period of the court decision with the date and number written above.
In the application of the debtor to the enforcement court; It has been understood that the vehicle with license plate number 01 KB 476 belonging to the Municipality, on which the lien was placed, was allocated to the public with the decision of the municipality council, therefore it requested the removal of the lien on the vehicle, the court decided to accept the case, and the creditor appealed the decision.
In the 15/last article of the Municipality Law No. 5393; The regulation “The property of the municipality that is actually used in the public service and the tax, duty and fee revenues collected by the municipality cannot be seized”. According to this article, in order for the municipality’s complaint of non-attachment to be accepted, it is obligatory to actually use the seizures in the public service.
According to the principles of the Enforcement and Bankruptcy Law and the law of enforcement, the main thing is to ensure that the creditor gets his receivables, as a rule, it is possible to seize all the properties of the debtors. In order for a property not to be seized, there must be a legal regulation. Since non-attachment is an exceptional situation, regulations in this direction should also be interpreted narrowly.
Accordingly, in order for a movable or immovable property belonging to the debtor municipality to be non-seizure, it is indisputable that that property must actually be used in public service. However, in order to accept that a good is actually used in public service, that good must be found suitable for the purpose of carrying out the public service.
In the concrete case, it is understood that the vehicle belonging to the debtor municipality, which is the subject of the complaint of non-seizure, is the mayor’s official vehicle. In the light of the principles explained above, it should be emphasized whether the mayor’s vehicle is required for the municipality to carry out the public service and whether a vehicle allocated as an official vehicle is actually used in the public service.
Article 4 of the Vehicle Law No. 237 regulates who will be given an office vehicle, and the mayor is not one of those who will be allocated an office vehicle in accordance with the aforementioned law.
On the other hand, the use of the vehicle as an official vehicle does not mean that it is actually used in public service, and the mayor does not have to have an official vehicle in order to carry out public service. Because the duties of the municipalities are explained in Article 14 of the Law No. 5393, it is not obligatory for the mayors to have an official vehicle in order to fulfill these duties.
In that case, the court’s decision to accept the complaint with a written reason instead of rejecting it is inaccurate.
CONCLUSION: With the acceptance of the creditor’s objections to the appeal, the court decision will be OVERFINED pursuant to Articles 366 of the Execution and Bankruptcy Law and 428 of the Code of Civil Procedure for the reasons written above, the refund of the prepaid fee upon request, the right to rectify the decision within 10 days from the notification of the verdict. It was decided unanimously on /06/2019.
