COURT OF CASSATION’S DECISION REGARDING SERVICE OF PETITIONS IN ANNULMENT LAWSUITS
The Court of Cassation General Assembly on the Unification of Judgments (the “Court”) with docket number 2021/1 and decision number 2022/3 (in Turkish, “Yargıtay İçtihadı Birleştirme Büyük Genel Kurulu’nun 2021/1 E., 2022/3 K. Sayılı Kararı, the “Decision”) has recently provided a decision on the unification of judgments which was published in the Official Gazette on 26 November 2022 and numbered 32025.
This Decision is related with the situation where the creditor initiates an execution proceeding (in Turkish, “icra takibi”) against the debtor, and such debtor objects to the execution proceeding through the assistance of their attorney, the lawsuit petition which must be submitted for the annulment of objections (in Turkish, “itirazın iptaline ilişkin dava dilekçesinin asile tebliği”) to the execution proceeding to be filed by the creditor must be served on the debtor, not its attorney.
As a rule, an execution proceeding may be initiated against a debtor for the recovery of a debt and the debtor may for certain reasons object to the execution proceeding within the legal-time period in order to halt the payment order issued for the recovery of such debt.
In the past, there were certain differences of opinion amongst chambers of the court of cassation as to whether if the creditor decides to commence lawsuit for annulment of the execution proceeding then to whom to serve the lawsuit petition, i.e. would it be the debtor or its attorney that the lawsuit petition must be served? In one example, 13thCourt of Cassation was in the view that even of the relevant attorney represented the debtor in the execution proceeding and he/she was granted with the necessary authorization to represent at that time, it would not be certain that the attorney is granted with the necessary authorization to represent the debtor at the annulment of objection lawsuit stage. It was for that reason that the service of lawsuit petition must be made to the debtor, not the attorney, it was expressed in their opinion letter to the Court for unification of judgments.
In the rationale for the reason of the Decision, it is stated that as per article 67 paragraph 1 of the Enforcement and Bankruptcy Law, the proceeding for the annulment of objections to the execution proceedings is an action subject to general provisions and therefore, the proceedings shall be conducted as per the requirements foreseen under Article 119 of the Turkish Civil Procedure Code (the “CPC”). Furthermore, as per Articles 122 and 317 of the CPC, it is envisaged that the service of the lawsuit petition must be made to the “debtor”, not “the attorney” if any. For these reasons, it is determined that instead of serving the lawsuit petition on the debtor if it is served on the attorney would constitute a breach of imperative provisions of the CPC.
The Court took the view that the action for annulment of objection is not a complaint, nor it is a pursuit, it is a general action which is commenced in courts as per the provisions of the CPC.
Please kindly note that the Decision is clarifying the issue of service of the lawsuit petition, and it is a binding decision for the future relevant lawsuits.
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