2017-02-20

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Execution of decree

Executing Court though could not go behind the decree but at the same time the said court could look into the question whether the decree or part thereof was executable or inexecutable and if for any reason the decree had become inexecutable, the Executing Court was empowered to declare so and if a part of the decree was inexecutable and that part was severable from the other part(s) of the decree then the Executing Court was empowered to refuse the execution of the inexcutable part of the decree and may proceed with the execution of the rest of the decree

2004 SCMR 1352. Muhammad Pervez V/S Nabila Yasmeen & 2 Others (SC.FB)

S.13 West Pakistan Family Courts Act, 1964. Warrant of arrest against attorney of the judgment debtor. Suit for maintenance was decreed in favour of wife and minor daughter. Husband was living abroad and the whole proceedings were contested through attorney. During execution proceedings, the attorney made a statement regarding payment of decretal amount. Before next date of hearing, the husband revoked the power of attorney but the Executing court issued non-bailable warrants against the attorney. Plea raised by the attorney was that the warrants could not be issued against him as the suit was not decreed against him. All the courts below rejected the plea of the attorney. Validity. Once the decree was passed, the same could not be allowed to be set at naught through mala fide act of the judgment debtor whereby he might propose to revoke the power of attorney. Courts were aware of their authority and obligation to implement the decrees passed by them. Judgment-debtor was bound to satisfy the decree either himself or through the attorney who had been throughout representing the judgment-debtor in the suit. Orders of the courts below were based on sound and cogent reasons which were neither perverse nor capricious and were the result of proper appreciation of facts and law. LEAVE TO APPEAL REFUSED.

NLR 2008 SD 178.Rafique Hussain & another V/S Zareena Bibi etc. (Shariat Court AJK)

Rule 12(2) AJK Family Courts Act. Execution application filed by wife which was dismissed for non-prosecution would be rightly restored by Family Court when there was sufficient cause as on account of heavy rains and land sliding applicant/wife could not approach Court at relevant time. (2) S.14. An order of Family Court restoring execution application which was dismissed for non-prosecution would be an interlocutory order which is not appealable under S.14. Appeal filed before Shariat Court against such interlocutory order dismissed by Shariat Court as not maintainable. (3) S.14. Legislature in its wisdom did not make any provision in the Act for appeal against an interlocutory order. Under S.14 only a final decision or decree passed by Family Court would be appealable before Shariat Court. APPEAL DISMISSED.

NLR 2008 SD 173. Muhammad Ismail V/S Superintendent District Jail (Lahore)

S.491 CrPC. Detention of detenu for non-compliance with maintenance decree passed by Family Court under Family Courts Act, 1964, cannot be challenged through habeas corpus petition U/S 491 as special procedure is provided in the Act for recovery of decretal amount pursuant to decrees passed by Family Courts which includes adopting coercive measures in case judgment-debtor is found evasing in complying with decrees for payment passed by Family Court. (2) S.13(3) Execution of maintenance decree passed by Family Court is governed by S.13(3) to the exclusion of S.51 CPC. Detention of judgment debtor for non-compliance with maintenance decree passed by Family Court cannot be challenged on ground that requisites for arrest under S.51 CPC were not satisfied. HABEAS CORPUS DISMISSED.

PLJ 2008 Lahore 531. Ghulam Rasool V/S Senior Civil Judge & 4 Others

S.14(2) W.P. Family Courts Act 1964. Petitioner was arrested and sent to jail. Released when he gave undertaking that on release the remaining amount would be paid in installments. Petitioner requested the Judge Family Court to defer the payment for some time as he being financially not in a position to pay. Request was disallowed—-Validity—-Facility of payment through installment was given to petitioner at his own instance and with his own consent. Held: Petitioner is bound by same and has to face the consequences unless he makes out a case of legal and factual justification for any variation in matter settled through compromise. Law relating to grant of maintenance allowance is in essence aimed at welfare of the persons entitled to get maintenance. Further held: If a right of appeal against the insufficiency of quantum of maintenance allowance is curbed on the strength of S.14(2) of Family Courts Act, it shall be inhuman, unreasonable and against all norms of logic and loaw. True perspective of law is that the bar provided is against the judgment debtor and not against the decree holder agitating against the insufficiency of maintenance allowance decreed by the court. Position of the petitioner as debtor depends upon the determination question of facts. Such factual inquiry can not be under taken in the proceedings of the writ jurisdiction. PETITION DISMISSED.

2009 PLD Lahore 227. Rana Shahnawaz Khan V/S Judge Family Court, Lahore.

S.10(4) Family Courts Act 1964. Dissolution of marriage by way of Khula — Restoration to the husband the dower received by the wife — Execution of decree. Held, dower paid at any other time except at the time of marriage cannot be recovered through process of execution on the basis of a decree obtained in terms of S.10(4). …. Principles….

PLD 2009 SC 760.Tauqeer Ahmad Qureshi V/S Additional District Lahore

S.5 & 13. Decree of maintenance allowance to minors by the Family Court with an annual increase of 20% in the amount of monthly allowance. Execution of decree — Executing Court though could not go behind the decree but at the same time the said court could look into the question whether the decree or part thereof was executable or inexecutable and if for any reason the decree had become inexecutable, the Executing Court was empowered to declare so and if a part of the decree was inexecutable and that part was severable from the other part(s) of the decree then the Executing Court was empowered to refuse the execution of the inexcutable part of the decree and may proceed with the execution of the rest of the decree. In the present case, there was nothing on the record to show that the father of the minors had the means to pay the increase as ordered by the trial court. Minors, for the future prospects, could always approach the Family Court for the increase in the maintenance allowance due to any change in the circumstances. Judgment of High Court and the courts below, were, therefore, not sustainable to the extent of 20% increase in the maintenancce allowance of minors who shall be entitled only to the 5% annual increase in the allowance which would meet the ends of justice