The Procedure Of Suspension Of The Execution
- The procedure concerning suspension of the execution, which is regulated under Article 36 of the Enforcement and Bankruptcy Law and which is constantly encountered in practice, is a very significant process.
- Suspension of the execution is applied in enforcement proceedings with judgment initiated based on the judgment rendered by the court. The judgment rendered by the court is appealed by the debtor with the request concerning the suspension of the execution. The document called the postscript, which was obtained from the local court and stated that the court judgment was appealed with the request regarding the suspension of the execution, is submitted to the relevant enforcement file. The enforcement office calculates ninety-day interest in such a manner that covers the enforcement proceeding debt with all its accessories. The debtor deposits the amount calculated by the enforcement office in cash or by submitting a performance guarantee in the enforcement file. A certificate for a stay of execution is given to the debtor by the enforcement office after the security is paid in order to obtain an order for suspension of execution. The debtor obtains an order for suspension of execution by applying to the court of civil enforcement with such a certificate.
- Enforcement proceedings are suspended by the order for suspension of execution until the end of the appellate review. In the event that the appeal review is concluded and the local court judgment is definitively upheld, the current file debt is calculated and the security in the enforcement file is paid to the creditor. In the event that there is a balance amount, such amount is also paid by the debtor to the creditor. The security and letter of the guarantee are turned into cash with a letter to be written by the enforcement office and paid to the creditor. In case the local court judgment is overturned/revoked at the end of the appellate review, the security in the file is returned to the debtor.
- The procedure of suspension of the execution is applied in this way in general terms and our explanations and evaluations regarding the controversial issue before the doctrine and the Court Of Cassation are provided in the continuation of our letter.
Seizing Before the order for suspension of execution
- The order for suspension of execution can be obtained at any stage after the local court has rendered a judgment and such judgment has been subjected to enforcement proceedings. An order for suspension of execution can be obtained after the enforcement order is issued by the enforcement office is notified to the debtor and finalization of enforcement proceedings. In the event that the enforcement proceeding is finalized, the creditor has the right to demand a levy and can seize a levy on various assets of the debtor. The debtor will be able to obtain an order for suspension of execution from a court of civil enforcement by applying Procedure Of Suspension Of The Execution, which we have explained in general terms at the beginning of our letter, even after the levy is seized on his assets. Thus, based on the order for suspension of execution, the enforcement proceeding is ceased at current stage.
- After an order for suspension of execution is taken, the debtor’s entire file debt will be secured. Due to this reason, in line with Article 85 of the Enforcement and Bankruptcy Law, the levies seized before the order become transcendent. However, the fact that the levies in the file become transcendent is not a situation that can be taken into account ex officio by the enforcement office. The debtor should request that levies must be released since the levies have become transcendent. At the request of the debtor, the enforcement office may decide that the levies seized before the order for suspension of execution can be released or may refuse such a request. The dispute between the Court of Cassation and doctrine emerges at this stage.
- In the event that the enforcement office decides to release the levies which seized before the order for suspension of execution, the creditor has the right to lodge a complaint at this stage. In the event that the enforcement office rejects the request concerning releasing the previous levies, the debtor has the right to lodge a complaint.
The Status Of The Levies Seized Before The Order For Suspension Of Execution After The Order
- As a rule, an order for suspension of execution ceases the enforcement proceedings at the current stage. Due to this reason, the levies seized before the order for suspension of execution remain over. However, in the circumstances, Article 85 of the Enforcement and Bankruptcy Law comes to the fore. Pursuant to this article; a number of the debtor’s assets can be seized in order to cover the principal, interest, and expenses of the creditor. As we mentioned, the file debt, together with its accessories and three-month interest, is deposited as a security in the file in order for the order for suspension of execution can be taken. Therefore, at this stage; The risk of the creditor not being able to receive his receivable is eliminated. Accordingly, the debtor, who has obtained an order for suspension of execution, may request the enforcement office to release the levies seized before the order. While Court of Cassation, in its decisions in previous years; considered that “The order for suspension of execution would cease the proceedings at the current stage, therefore it was not right to release the levies seized before the order”; in its current decisions, Court of Cassation considers that “the security deposited in order to take the order for suspension of execution eliminates the risk of the creditor not being able to receive his receivables, therefore, the levies seized before the order have become transcendent levies and should be released”.
General Evaluation
- The procedure of suspension of the Execution can be considered as a regulation created in order to protect the rights of both the creditor and the debtor. Due to this reason, since the risk of not being able to receive the creditor’s receivables will be eliminated by the order for suspension of execution; there is no reason that may cause the creditor to incur a loss regarding the release of the levies prior to such an order. In the event that we look at the debtor’s point of view; the debtor’s bank accounts may have been seized before the order for suspension of execution. In the event that the levy on the bank accounts is not released, despite obtaining the order for suspension of execution by depositing a security, the debtor will be aggrieved here. Since, the debtor will have to deposit security and will not be able to use his bank accounts. In the event that we make a generally subjective evaluation in terms of both the creditor and the debtor; we consider that it would be more appropriate and equitable that the attachments seized before the order for suspension of execution should be released since they have become transcendent.
Şeref Şen, Attorney At Law
