
Under the Enforcement and Bankruptcy Law, one of the stages of the enforcement proceedings initiated by the creditor to collect their receivables is the seizure stage. At this stage, the debtor’s assets are seized, and the creditor’s receivables are collected through the sale of these assets. If there are multiple creditors and the debtor’s assets are sufficient to cover all debts, the debts are satisfied through the sale of the assets. However, if the seized assets are insufficient to fully satisfy the creditors’ receivables, the creditors may collect their debts through the procedure of participation in seizure (hacze iştirak) as regulated under the Enforcement and Bankruptcy Law.
Pursuant to Articles 100–101 of the Enforcement and Bankruptcy Law, participation in seizure is categorized into two types: ordinary participation and privileged participation. For participation in seizure to be applicable, the debtor must owe debts to multiple creditors, and the debtor’s assets must be insufficient to cover all outstanding debts.
Participation in seizure allows a creditor who has not initiated enforcement proceedings to collect their receivables, provided that their claim arose before the first creditor who initiated the seizure. If the rules governing participation in seizure were not in place, creditors would be able to impose seizures based on the order of enforcement proceedings, and if the debtor’s assets were exhausted, a creditor with an earlier claim would not have the opportunity to collect their receivables before the creditor who initiated the seizure.
Until When Is Participation in Seizure Possible?
A creditor wishing to participate in the seizure may request participation in the seizure for their receivable from the enforcement office that imposed the initial seizure, provided that the value of the seized asset sold has not yet been deposited into the treasury of the enforcement office. Participation in seizure does not differ between ordinary participation and privileged participation; in both types, the request can be made until the sale proceeds are deposited into the enforcement office’s treasury.
Ordinary Participation in Seizure
One of the types of participation in seizure, ordinary participation, also known as participation with enforcement proceedings, requires that the creditor requesting participation must have already initiated enforcement proceedings. The procedure for ordinary participation is regulated under Article 100 of the Enforcement and Bankruptcy Law. According to this provision:
Article 100 – Until the proceeds from the sale of the initially seized asset are deposited into the treasury, the following creditors may participate in the seizure at the same rank:
1 – To a certificate of insolvency obtained from enforcement proceedings initiated before the date of the enforcement request if the initial seizure is based on a non-judicial enforcement proceeding, or before the date of filing a lawsuit if the initial seizure is based on a judicial decision,
2 – To a judgment obtained from a lawsuit filed before the dates mentioned in the previous paragraph,
3 – To an official document or a notarized and signed promissory note dated before the aforementioned dates,
4 – To a receipt or certificate issued before the aforementioned dates by official institutions or competent authorities within their jurisdiction and in accordance with procedural requirements.
In this manner, upon application, the enforcement office imposes additional seizures in proportion to the total amount required to satisfy all creditors of the same rank.
Creditors outside this category may only participate in the seizure for any remaining amounts from the preceding rank.
A creditor requesting ordinary participation must meet three legally prescribed conditions. According to the legal provision, these three conditions are:
- A finalized enforcement proceeding
- priority
- proof by document can be listed as follows.
A creditor requesting ordinary participation must, as previously stated, initiate enforcement proceedings for their receivable, and the enforcement process initiated by the creditor must be finalized. If the creditor requesting participation in the seizure has not initiated enforcement proceedings related to the receivable, they will not be able to participate in the seizure.
One of the conditions for the ordinary participation procedure is that the creditor requesting participation, even if they have delayed in initiating enforcement proceedings, must have had their claim arise before the enforcement initiated by the first creditor, who began an enforcement without a judgment.
If the enforcement initiated by the first creditor is based on a judicial enforcement proceeding, the creditor requesting participation must have had their claim arise before the date of the judgment subject to the first seizure. Regarding the priority of the receivable, the law has clarified the situation by specifying certain documents. According to the legal provision:
- If the first seizure is based on a non-judicial enforcement proceeding, it applies to a certificate of insolvency obtained from an enforcement proceeding initiated before the enforcement request and before the lawsuit.
- It also applies to a judgment obtained from a lawsuit filed before the lawsuit or enforcement of the first creditor.
- It applies to an official document or a notarized and signed promissory note dated before the lawsuit or enforcement of the first creditor.
- It applies to a receipt or certificate issued by official institutions or competent authorities, within their jurisdiction and in accordance with procedural requirements, dated before the lawsuit or enforcement of the first creditor.
In the case of the documents, judgments, or enforcement proceedings listed above, the creditor may request to participate in the seizure imposed by the first creditor. If a request for participation is made to the enforcement office, the enforcement officer will examine the documents and paperwork submitted by the requesting creditor and decide whether to accept or reject the request. The parties have the right to appeal the enforcement officer’s decision of rejection or acceptance, and the decision can be appealed to the enforcement court by both the requesting creditor and the creditor who imposed the first seizure.
Privileged Participation in Seizure
In privileged participation in seizure, unlike ordinary participation, there is no requirement for the creditor requesting participation to have finalized enforcement proceedings. Therefore, the cases of privileged participation are listed in a limited manner in our law. The legislator, considering certain conditions, has decided that creditors cannot initiate enforcement proceedings, and has not required a finalized enforcement proceeding before the creditor who imposed the first seizure. Privileged participation is regulated under Article 101 of the Enforcement and Bankruptcy Law. According to this provision:
Article 101 – (Amended: 3/7/1940-3890/1)
The debtor’s spouse, children, and the persons under guardianship or custodianship can participate in the seizure at the same rank, without the need for prior enforcement proceedings, for claims arising from marriage, custody, or guardianship, until the value of the property sold as a result of the first seizure is deposited into the treasury. However, this right can only be exercised if the participation occurs during the continuation of the marriage, guardianship, or custody, or within one year following its dissolution. The duration of a pending lawsuit or enforcement proceeding is not considered in this context. The debtor’s adult children may always participate in the seizure at the same rank, without the need for prior enforcement proceedings, for claims arising from Article 321 of the Civil Code. Even the peace court may, on behalf of minors, those under guardianship, or those who have been appointed a custodian, participate in the seizure in the same manner.
(Amended: 18/2/1965-538/56) The enforcement office notifies the debtor and creditors of participation requests. They are given a seven-day period to object. In case of objection, the request for participation is temporarily accepted, and the creditor requesting participation is informed that they must file a lawsuit within seven days. If no lawsuit is filed within this period, the right to participate in the seizure is lost. The lawsuit is processed according to the simplified procedure.
Creditors relying on an alimony judgment can always participate in the seizure at the same rank, without the need for prior enforcement proceedings, except in cases of bad faith.
As seen, our law regulates privileged participation provisions in cases where there is a close relationship between the debtor and creditors. The debtor’s spouse and children, as well as individuals under guardianship or custodianship, creditors of care contracts until death, and alimony creditors based on alimony judgments, may request privileged participation in the seizure related to the first seizure creditor’s enforcement, without the need to initiate enforcement proceedings, as long as the value of the sold property enters the enforcement treasury.
The main difference between privileged participation and ordinary participation is that, in privileged participation, the debtor is given the right to object after being notified of the participation request by the creditor. According to this, after the participation request is notified to the debtor, the debtor has 7 days to object to the relevant enforcement office. If the debtor does not object to the participation request, and the conditions foreseen by the law are met, the participation is finalized. However, if the debtor objects to the participation request within the 7-day period, the participation request is temporarily accepted, and the creditor requesting participation is notified that they must file a lawsuit within 7 days. In this case, the creditor requesting participation must file a lawsuit within 7 days at the court where the enforcement office is located, according to general provisions. If the creditor requesting participation does not file a lawsuit within 7 days, the participation request is rejected by the enforcement office. As in ordinary participation, the parties may appeal the decision.
According to the relevant legal provision, there are two conditions for participating in the seizure with privilege. These conditions are:
- Being one of the specific persons listed in Article 101/1 of the law.
- Applying to the enforcement office within the legally prescribed period.
The individuals who are legally entitled to request privileged participation are the debtor’s:
- Spouse,
- Children,
- Persons under guardianship or custodianship,
- Care creditors until death,
- Alimony creditors.
According to the legal provision, the time condition stipulated is as follows: If the creditor requesting participation is the debtor’s spouse, they may request participation within 1 year from the end of the marriage; if the creditor is the debtor’s children, they may request participation within 1 year from the end of the custody relationship; and if the creditor is related to a guardianship relationship, they may request participation within 1 year from the end of the guardianship relationship.
Participation in Seizure Due to Public Debt
In the case of a public debt, the collection of the debt is carried out in accordance with the Law No. 6183 on the Procedure for the Collection of Public Claims. If a debt arising from private law and a public debt coincide in time, the public debt will be able to participate in the first seizure. In this case, the conditions provided in Article 100 of the Enforcement and Bankruptcy Law (İİK) do not apply.
Participation in Seizure in the Case of Precautionary Seizure
In the case of a precautionary seizure, if a follow-up is initiated to seize the property but before it turns into a final seizure, it is seized by another creditor, the creditor who requested the precautionary seizure may participate in the first seizure automatically. However, if the first seizure is final, the creditor requesting the precautionary seizure will not be able to participate in the seizure. If both the first seizure and the requested participation are precautionary seizures, it will be necessary to wait for one of the precautionary seizures to become final and turn into a final seizure.
After the acceptance of the request for participation in the seizure, a community formed from the common interest of those participating in the seizure will emerge. In this case, based on the request of one or more of the participating creditors, the seized property will be sold, and the value obtained from the sale will be paid to the creditors who participated in the first seizure. If there is still some value remaining after the payment, the second rank will be addressed, and this process will continue until the money runs out. If the value of the seized goods sold is insufficient to cover the claims of the creditors participating in the seizure, the enforcement office will prepare a priority list, and the distribution will be made according to this list. Alimony claims always occupy the first position in the prepared priority list.
Example Court of Cassation Rulings on Participation in Seizure
12th Civil Chamber 2018/11618 E., 2018/8763 K.
“Case Law Text”
COURT: Enforcement Court
Upon the complainant’s request for a review of the above-mentioned court decision within the period, the file related to this matter was sent from the local court to the chamber. After the report prepared by the Review Judge … was heard and all documents in the file were read and examined, the matter was discussed and decided upon as follows:
Although the other appeal objections are not justified:
The complainant third party, in the enforcement proceeding initiated by the creditor … against their spouse …, claims that a lien was placed on the real estate registered in the debtor’s name and that the real estate was auctioned on 25.06.2015. The complainant third party asserts that the real estate is the family home and that they have borne all maintenance and repair costs. They also applied to the enforcement office for privileged participation in the seizure. The enforcement officer, with an action dated 03.06.2015, rejected the request on the grounds that the conditions in Articles 100 and 101 of the Enforcement and Bankruptcy Law (İİK) were not met. The complainant then applied to the enforcement court, requesting the annulment of the office action and asking for permission to participate in the seizure without following the enforcement procedure. The court, after reviewing the case without the parties and based solely on the documents, dismissed the complaint on the grounds that there was no claim as specified in Article 101 of the İİK and the conditions were not met.
Article 101 of the Enforcement and Bankruptcy Law (İİK) states: “The spouse and children of the debtor, and individuals under guardianship or trusteeship, may participate in the seizure to the same extent as creditors until the amount of the goods sold is deposited into the enforcement office’s cash register, without needing to follow the enforcement procedures for alimony, custody, or guardianship claims. However, this right can only be exercised if the request is made during the continuation of the marriage, guardianship, or custody, or within the year following the dissolution of these relations. The continuation of a lawsuit or enforcement proceeding is not considered. The debtor’s adult children, as per Article 321 of the Civil Code, can always participate in the seizure related to claims for which enforcement procedures are required without the need to follow the enforcement procedures.”
In the present case, according to the population register in the enforcement file, the complainant third party is married to the debtor …, and the lien was placed on the real estate at … Mah, 528 ada, 6 parcel, 5 independent section, which was auctioned for the debt on 25.06.2015. The complainant third party’s application to the enforcement office was made before the auction proceeds had been deposited into the enforcement office’s cash register, and it was determined that the enforcement officer did not notify the creditor and debtor about the request for privileged participation as per the aforementioned legal regulation.
Therefore, the court, after including the legal opponent creditor in the complaint and ensuring party formation, should have partially accepted the complaint, considering that the complainant third party, as the debtor’s spouse, could participate in the seizure with privilege. Based on Article 17/1 of the İİK, the court should have amended the enforcement office’s action of 03.06.2015 to “notifying the debtor and creditor about the complainant third party’s request for privileged participation in the seizure as per Article 101 of the İİK.” The judgment issued in the written form was incorrect.
RESULT: With partial acceptance of the complainant’s appeal objections, the court decision is overturned in accordance with Articles 366 of the İİK and 428 of the Civil Procedure Law (HUMK) for the reasons mentioned above. The court fee paid in advance will be refunded upon request, and the decision will be subject to correction within 10 days from the notification of the judgment, as decided unanimously on 27/09/2018.
23rd Civil Chamber 2017/947 E., 2020/3231 K.
“Case Law Text”
COURT: Enforcement Court
After the trial of the case between the parties regarding the objection to the ranking list, the file was examined upon the request of the complainant’s attorney for an appeal within the given period, and after reviewing all documents, the matter was discussed and considered.
- DECISION –
The complainant’s attorney claimed that the alimony debt based on the court decision should be given priority in the ranking list, but the first-ranked creditor in the enforcement file, who is the defendant in this case, was wrongfully given priority, contrary to the law. Therefore, the complainant requested the annulment of the ranking list.
The defendant’s attorney argued that the complainant’s accumulated alimony debt was an ordinary debt, with no priority or privilege, and requested the rejection of the complaint.
The Enforcement Court rejected the complaint, reasoning that the accumulated alimony debt was of ordinary debt nature.
The complainant’s attorney appealed the decision.
The complaint concerns the ranking in the ranking list.
Article 101, Paragraph 1 of the Enforcement and Bankruptcy Law (İİK) states: “The debtor’s spouse, children, and persons under guardianship or custody may participate in the auction of the property sold due to enforcement without the need for prior execution procedures, until the amount is deposited into the enforcement office’s account, provided that the right is exercised within one year after the dissolution of the marriage, guardianship, or custody, or within one year after its termination. A lawsuit or enforcement proceeding in progress is not considered.”
Furthermore, Paragraph 3 of the same article states: “A creditor based on alimony can always participate in the auction without needing to follow the execution procedure.”
Based on this, the right to participate in the auction without prior follow-up can be exercised at any time for debts based on alimony orders, without the limitation of the one-year period. The term “at any time” should be understood to mean until the sale amount is deposited into the enforcement office’s account. As explained in the Supreme Court’s 19th Civil Chamber decision of 19.02.2009, 2008/12471 E., 2009/1290 K., the alimony creditor has the right to participate in the auction until the proceeds from the sale of the seized property are deposited into the enforcement office’s account, without having to initiate or finalize enforcement procedures.
Moreover, Article 206 of the İİK, which is in the section on “Legal Consequences of Bankruptcy,” regulates privileges in the ranking list prepared during bankruptcy liquidation and does not apply to enforcement procedures via seizure. In enforcement proceedings through seizure, if the sale proceeds of the seized property are insufficient to cover the claims of all creditors, a ranking list is prepared. The general rule in this ranking list is to rank creditors according to the dates of seizure. The first creditor with a definitive seizure and other creditors that can participate are determined, and ranks within each degree are created. While Article 140, Paragraph 2 of the İİK refers to Article 206, the privileges in this article can only be claimed against creditors who are not participating in the same degree of seizure and do not have public debts. In other words, the privileges in Article 206 of the İİK (except for cases of participation in seizure under Article 100-101) cannot be used to place a later-seizing creditor in front of an earlier-seizing creditor.
In this case, it is clear that the complainant could have participated in the first seizure based on alimony until the sale price was deposited into the enforcement office’s account. However, the complainant opted to initiate a separate enforcement procedure, placing a seizure on the property, and thus, it is clear that the complainant should participate in the first seizure.
As a general rule, a participating creditor receives their share of the sale proceeds alongside the creditor who initiated the seizure. The proceeds are shared among creditors proportionally. However, privileged creditors are regulated under Article 206 of the İİK. The complainant is both a participating creditor under Article 101 and a privileged creditor under Article 206/4-C.
Thus, in line with the explanation above and the principles set out, the court should have ruled that the complainant, as the alimony creditor, could participate in the first seizure and that, according to the provisions of Articles 140/2 and 3 of the İİK, the portion of the alimony debt that had accrued in the previous year before the seizure request should be prioritized in the distribution of sale proceeds, and the remaining amount should be shared between the complainant’s debt, which does not benefit from the privilege, and the defendant’s debt. The amounts should be determined by an expert report, and a decision should have been made based on this determination. However, a decision based on insufficient examination and incorrect reasoning is incorrect.
CONCLUSION: The appeal of the complainant’s attorney is accepted, and the decision is reversed in favor of the complainant. The advance fee will be refunded upon request. The decision may be appealed within 10 days of notification, and the decision is final on 26.10.2020, with unanimous approval.
6th Civil Chamber 2021/782 E., 2021/839 K.
“Case Law Text”
Court: Enforcement Court of Law
Following the judicial process of the objection to the sequence table between the parties, and due to the reasons written in the judgment, the judgment was appealed by the defendant’s attorney … within the appeal period. The case file was reviewed, and after it was determined that the appeal request was timely, it was decided that the review would be conducted based on the file, as the decision being appealed is not subject to a hearing. The case file was reviewed, and the necessary considerations were made.
DECISION
The complainant’s attorney argued that they had initiated a follow-up procedure for the collection of alimony, that a sequence table had been established regarding the debtor’s entitlements from SGK (Social Security Institution), but the complainant’s alimony claim had not been included in the sequence table. The attorney claimed that according to Article 101 of the Execution and Bankruptcy Law (İİK), the complainant should participate in the seizure and requested the cancellation of the sequence table.
The defendant’s attorney argued that the complainant’s accumulated alimony was of a general debt nature, with no priority or privilege, and requested the rejection of the complaint.
The Enforcement Court ruled to reject the complaint, stating that the accumulated alimony was a general debt.
The complainant’s attorney appealed the decision.
The complaint is related to the order of the sequence table.
Article 101/1 of the İİK regulates the participation in the seizure, specifying the conditions under which a creditor can participate without initiating a follow-up procedure. Article 101/3 of the İİK further stipulates that alimony creditors, except in cases of bad faith, can participate in the seizure without initiating a follow-up.
Since the complaint is related to alimony, Article 103/3 of the İİK is the applicable provision for resolving the issue. As mentioned above, the participation in the seizure is regulated in Article 100 of the İİK, and for a creditor to participate in the first seizure, they must meet one of the four conditions listed in the article.
In the current case, the first seizure belongs to the debtor …’s file with Adana 12th Enforcement Directorate, with the follow-up date being March 16, 2012. Since this is a non-litigious follow-up, the creditor participating in the first seizure must rely on a judgment obtained from a lawsuit filed before the follow-up, as per Article 100/2 of the İİK. The complainant’s alimony claim is based on a judgment received after the lawsuit filed on September 5, 2012. The follow-up date of the file in question is March 16, 2012. Therefore, the complainant’s alimony cannot meet the requirements to participate in the first seizure.
For these reasons, the complaint should have been rejected. The acceptance of the complaint, based on an incorrect interpretation of the last paragraph of Article 101 of the İİK, was not correct.
CONCLUSION:
For the reasons explained above, the appeal of the defendant’s attorneys from Muratpaşa and Yüreğir Tax Offices, as well as the appeal of attorney …, is accepted, and the judgment is reversed in favor of the defendant. The advance fee paid is to be refunded to the defendant Nevzat Ecza Deposu upon request. No further appeal options are available, and the decision was made unanimously on October 13, 2021.

Views: 1