9TH CIVIL CHAMBER OF THE COURT OF CASSATION
T. 24.09.2001 E. 2001/15124 K. 2001/14417
ANNULMENT OF OBJECTION
SIMULTANEOUS NON-COLLECTION OF THE RECEIVABLE
SUMMARY : Cancellation of the objection and collection of the receivable cannot be requested together. In such a case, the court should have the plaintiff explain whether the lawsuit is for the cancellation of the objection or for the collection of the receivable, and the lawsuit should be concluded as a cancellation of the objection or a collection lawsuit accordingly.
DECISION : It is understood that the plaintiff employee applied for enforcement proceedings for the balance receivable reserved in the partial lawsuit previously filed against the defendant employer, and the defendant objected to a part of the receivable subject to the proceedings and the proceedings were stopped.
The plaintiff worker requested the cancellation of the objection and the continuation of the proceeding and the execution-denial compensation, and also requested a decision to collect the receivable subject to the objection.
The court decided to collect the receivable of (…) TL from the defendant and to reject the request for execution-denial compensation.
First of all, it should be noted that the cancellation of the objection and the collection of the receivable cannot be requested together. In such a case, the court should have the plaintiff explain whether the lawsuit is for the cancellation of the objection or for the collection of the receivable, and accordingly, the lawsuit should be concluded as a cancellation of the objection or as a lawsuit for the receivable. In the case in question, although the plaintiff requested both the cancellation of the objection and the collection of the receivable in the same lawsuit, the lawsuit should have been concluded accordingly, since the plaintiff reserved his lawsuit for the cancellation of the objection and the request for execution-denial compensation in his petition dated 20.2.2001.
CONCLUSION: It was unanimously decided on 24/09/2001 to VACATE the appealed decision for the reasons written above.
