Ex partee decree passed and order due for execution - Remedies
My father has a shop in Jammu - J & K India. We are tenants there from the almost 40 years. Few years back out landlord filed a suit of ejectment on us on the basis of non payment of Rent. But actually he owed some money to us and that was the reason we stopped paying rent for few months but actually he was very smart and he made this as a ground of three legal defaults by us and filed an ejectment suit in the trial City court. Few months back we received a notice from COURT that an EX PARTEE DECREE is passed against us by the court and we were not aware of this at all. When we approached the court and to our utter surprise we came to know that out counsellor remained absent number of times in the past without knowledge and the court passed an ex partee decree against us. Our Counsellor mislead and misguided us all the times and the judgement and remained absent many time and decree went against us in spite of very strong ground as follows -
• We are in possession of the shop from the past 40 years
• That it is my father’s only source of income
• We don't have any other immovable property where as our land lord has many other income sources and lot of immovable property also
• No rent is pending till date as we are depositing rent in the court every month.
Once we got the decree order, then our COUNSELLOR filed an application for setting aside that ex -partee decree and the other party requesting for execution. The main reason given by our counsellor for setting aside is that the Judge kept the file with him for the past few months before he passed the judgement and order and he was not aware of this proceeding at all. A final argument was held on this few days back and the court has fixed a date of 06th March for orders. I was present at the time of argument and I am not very convinced with the reply that my counsellor and I am a bit sure that the judgement will be go against us and the court will ask for execution of the decree. My humble request is if someone can advise me in the following points
• What will be the best remedy / remedies for us under law to stop execution if the court orders so? What remedies' law provide us in that case?
• Can we do something in anticipation of a negative judgement against us and prevent the execution? We still have about 20 days with us when the order will be announces.
Thanks and if some can advise on the above. I will be greatly thankful.
I am based in Delhi and can meet in person also in Delhi for consultation on payment of requisite fees.
Asked in Civil Law from Jammu, Jammu and Kashmir
1. It s not possible, except by reason of a casual attitude incongruous with the duty of a lawyer, that your counsel could not be aware of the court proceedings. The judge neither sleeps over the file, nor keeps it at his house. The file remains in the court and the same may be seen at any time by the lawyer in accordance with the law and after the payment of necessary court fees by the litigant.
2. If you have a reason to believe that the court order will be unfavourable to you then it is apposite to chalk out the further legal strategy well in advance so as to obviate the consequences of the order.
3. You must be having a copy of the case filed against you and the reply tendered by your lawyer. Meet a lawyer in person with all the documents in your possession so that he may objectively assess and acquaint you with the legal remedies available to you. The remedies are multifarious depending on the specific grounds taken in the case by your landlord.
1) the reasoning given by your lawyer for setting aside decree is flawed . you should never make allegations against the judge . he could have admitted his mistake that on account of his own negligence he failed to attend court on various dates . it is well settled law that litigant should not suffer for negligence of his advocate .
2)if you apprehend order will be passed against you then you can go in appeal against said order . change your advocate
3) obtain copy of all documents on record .