8. Law Office
Base Number: 2016/1136
Decision Number: 2016/1136
“Justice Text”
COURT: Enforcement Civil Court
TYPE OF CASE: Ration
Upon the request of the appellant, the file regarding this matter was sent to the Chamber within the time limit of the Court decision with the date and number of which is written above.
DECISION
On 04/06/2013, the attorney of the plaintiff 3rd party stated that the movables belonging to the client company were confiscated, the debtor is the partner of the company, and the company’s property cannot be seized due to the personal debt of the partner of the company, and demanded the abolition of the seizure upon the acceptance of the remuneration claims and filed a lawsuit.
The defendant claimed that they initiated enforcement proceedings for the collection of the alimony determined for the attorney, client and joint children of the defendant, that after the attachment, the plaintiff company deliberately claimed remuneration and that it was intended to prolong the case, therefore, the case demanded that the case be dismissed.
At the end of the trial made by the court, it was decided to reject the remuneration lawsuit and the decision was appealed by the plaintiff’s third party attorney.
Pursuant to Article 33 of the Code of Civil Procedure No. 6100, it is up to the parties to assert material events, and to the judge to make legal qualifications and to determine the applicable laws. According to the way the claim is put forward, the case is based on the Execution and Bankruptcy Law of the third party, 96. vd. It is in the nature of a “remuneration” lawsuit filed pursuant to Articles of Association, and the Court has decided by making a trial according to this qualification.
The proceedings, which are the subject of the lawsuit, have been initiated due to the alimony debt and are in the nature of the personal debt of the company partner debtor. Pursuant to Article 133 of the Turkish Commercial Code No. 6102, the personal creditor of one of the partners has his right from the profit share of that partner in accordance with the balance sheet of the company and the liquidation share if the company has been dissolved, if the balance sheet has not been drawn up yet, from the profit and liquidation share that will fall to the debtor as a result of the arrangement of the balance sheet, It has the authority to take the undocumented shares in accordance with the provisions of the Execution and Bankruptcy Law No. 2004 on movables or to take from the other receivables of the partner from the company and to make a lien for this purpose. Apart from this, since the seizure of the assets of the company due to the personal debt of the partner-debtor is against the procedure and the law, it is not correct to reject the case in writing when the case should be accepted.
CONCLUSION: For the reason explained above, with the acceptance of the appeal objections of the plaintiff’s 3rd party attorney, the judgment was OVERFINED pursuant to Article 428 of the Code of Civil Procedure No. 1086, by sending the Execution and Bankruptcy Law No. /3. It was unanimously decided on 25.01.2016 that a request for rectification of the decision can be made against the decision within 10 days following the notification of the Supreme Court Chamber’s decision and the cash fee of 24.30 TL will be returned to the appellant.
