3. Legal Department
Base Number: 2016/12372
Decision Number: 2018/4208
“Case Law Text”
COURT :FAMILY COURT
As a result of the court’s trial of the case for the cancellation of the appeal between the parties, the provision for the acceptance of the case was appealed by the defendant within the time limit; after the decision was made to accept the appeal, the papers in the file were read and considered decisively:
SUPREME COURT DECISION
The plaintiff; defendant with the divorce, the defendant in accordance with the protocol approved by the court for the benefit of monthly 3.000,00 TL resulted to alimony if the amount of the alimony accumulated on 21/12/2010 9.925,00 TL ‘s, although the defendant has paid to the defendant bank through 08/09-10-11/2010 with the moon 03/05-06/2013 costs for the collection of alimony prompt Anatolian 24 months.Executive Directorate 2013/17558 started a follow-up against the main file, filed a lawsuit for the cancellation of the excess requested part of the executive order, Anadolu 5. Executive Court 2013/598 the main 2014/50 Decision No. of the court of law 2013/598 the amount sent in the transfer is alimony payment is not stated that the case was decided to be dismissed by betting, the amount subject to follow-up had to pay the entire amount, so the plaintiff became rich for no reason,this time for the collection of TL 9.925, 00 overpaid to the defendant … Anadolu 22. He claimed that the Executive Directorate had initiated a follow-up against the defendant through an undeclared execution with the main file 2014/19570, but that the follow-up had stopped due to the defendant’s unfair objection, and that with the cancellation of the appeal, he wanted to rule on the continuation of the follow-up and compensation for denial of execution, not less than 20% of what he will receive.
The defendant appealed to derdestlik and asked for the dismissal of the case.
Court; acceptance of the case; defendant – debtor… Anatolia 22. With the cancellation of the appeal made by the Executive Directorate to file 2014/19570 basis, it was decided to continue the follow-up and to collect the executive denial compensation from the defendant, not less than 20% of the claim, and the provision was appealed by the defendant during his term.
The case relates to the claim that the alimony debtor has paid repeated alimony and the request for the cancellation of the appeal against the unannounced enforcement proceedings initiated against the alimony creditor for the purpose of collecting the receivables, based on the legal reason for unprovoked enrichment.
1) according to the articles in the file, the evidence on which the decision is based, as well as the necessary reasons in accordance with the law, and in particular, there is no lack of appreciation of the evidence, the defendant must reject other appeals that fall outside the scope of the following bent.
2) in a concrete dispute, the plaintiff claimed that the alimony debt was repeatedly paid, and the defendant argued that the amount transferred to him through the bank was not the equivalent of alimony.
Payment documents must have a clear reference to which receivables were made. However, there is no explanation in the receipt covered by the file regarding the transfer made by the plaintiff.
But it should be immediately noted that, as a rule, remittance is a means of payment, indicating that an existing debt has been paid. The person who sent the transfer must prove the opposite of the stated presumption. In this case, the obligation to prove the debt relationship rests with the plaintiff. The money sent in the transfer receipt, on which the plaintiff is based as evidence, is not an explanation of what it was sent for, nor is it alone conducive to the opinion that it was sent for the purpose of paying the alimony debt as stated above. As such, the statement in question is not sufficient to prove the claim, nor can it be considered as the beginning of written evidence.
In this respect, since the court could not prove that the amount sent to the defendant by wire transfer was sent to offset the accumulated alimony debt, the case should be dismissed, while the decision to accept the case in writing above with an erroneous assessment was not correct.
3) according to acceptance; as for the defendant’s Appeals for executive denial compensation;
Although enforcement – denial compensation has been ruled against the defendant; since the existence and amount of the subject matter of the appeal cancellation case can be determined by the trial, the receivable is considered liquid, iik 67.in accordance with the article, it was also not correct to rule on compensation for denial of execution in favor of the plaintiff, which required a violation.
Conclusion: for the reasons described in the first paragraph above, the defendant’S request for other appeals was rejected, and for the reasons described in the second and third paragraphs, the provision was HUMK.nun 428.according to Article 1086 HUMK with provisional Article 3 attribution of HMK 6100 to the breakdown of the benefit of the defendant, to the return of the appeal fee received in advance to the appellant on request.nun 440.in accordance with the article, the path to correction of the decision was decided unanimously on 18.04.2018.