2017-10-17

Tags:

2017 YLR 827 LAHORE-HIGH-COURT-LAHORE

WAHEED ANWAR    vs  ADDITIONAL DISTRICT JUDGE

S. 13—Decree for maintenance allowance, execution of—Conditional compromise—Wife withdrew earlier execution petition on basis of conditional compromise—Subsequently husband failed to honour terms of compromise, therefore, his warrants were issued—Husband objected to warrant contending that “once compromise was always a compromise” therefore his warrants should be cancelled—Circumstances demonstrated that decree was not satisfied in letter and spirit, rather parties entered into a compromise on conditional statement of wife i.e. that if husband again deserted her from his house, she reserved the right to re-file execution petition—Judgment-debtor being father of minors and husband of the lady was under legal and moral obligation to maintain them—Judgment and decree was not assailed before appellate court, therefore, it had attained finality and no exception could be taken to that—Executing court could not go beyond the decree—Contention of judgment-debtor that “once compromise was always a compromise” was misconceived and ill-founded because compromise inter se parties was conditional which was revoked by husband/father himself—Constitutional petition was dismissed accordingly.

 2017 SCMR 321 SUPREME-COURTS

 Haji MUHAMMAD NAWAZ  vs  SAMINA KANWAL

S. 5, Sched. & S. 13(3)—Decree for return of dowry articles, execution of—Return of gold ornaments or in the alternative their ‘prevailing market price’—Trial Court passed decree for return of dowry articles and after a period of about ten years during execution proceedings of said decree it was held that gold ornaments shall be paid either in the shape of golden ornaments or in alternative price thereof as per market value of the gold at the date of its payment—Plea of husband that executing court went beyond the terms of the decree by ordering the payment of price of golden ornaments at the prevalent market rate—Validity—Grant of relief regarding payment of price of golden ornaments at the prevalent market rate, in case the golden ornaments were not returned, was fully justified and it could not be said that it amounted to going beyond the terms of decree by the executing court—[Per Umar Ata Bandial, J; agreeing: Husband had not delivered the decretal dowry articles to the wife—Under S.13(3) of the Family Courts Act, 1964, the decree was liable to be implemented within 30 days, however, in the present case even after the lapse of 12 years of passing of the decree, the husband had not deposited a single rupee with the Executing Court towards the adjustment of the said decree—Having been expressed in the alternative, the decree did not become a decree for money simpliciter for the amount stated therein, because the price of dowry articles fixed in the alternative by the decree under execution represented their market value as on the date of decree—Such market value of the decretal dowry articles could not remain static endlessly, therefore the alternative monetary direction in the decree could not remain fixed after lapse of reasonable time—Delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection could not under the principles of equity, justice and fair play be allowed to defeat the decree under execution by the husband’s refusal to both deliver the dowry articles and also to pay their corresponding market value as on the date of payment—Petition for leave to appeal was dismissed accordingly.

2016 PLD 622 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD RAMZAN   VS  ALI HAMZA

Ss. 17 & 13—Civil Procedure Code (V of 1908), Ss. 10 & 11 & O.XXI, R.30—Execution of decree—Provisions of Civil Procedure Code, 1908–Applicability-Scope—Provisions of Civil Procedure Code, 1908 except Ss. 10 & 11 though had been ousted from the purview of Family Courts Act, 1964, however, Family Court might follow the procedure as contained in Civil Procedure Code, 1908 for the execution of decree.

2016 PLD 622 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD RAMZAN  VS  ALI HAMZA

Ss. 13 & 5, Sched—Maintenance allowance—GGrandfather liability of—Execution petition—Procedure—Execution of a decree against a person who was not party to the suit—Scope—Minors filed suit for maintenance allowance against their father which was decreed—Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached—Contention of grandfather was that he was not party to the suit and decree could not be executed against him—Validity—Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children—Such liability of grandfather was dependent upon the fact that he was in easy circumstances—If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances—Family Court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position—No decree could be executed against a person who was not a party to the proceedings—Executing court could not go beyond the decree—Decree passed by the Family Court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied—Process of execution of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree–Family Court could adopt the procedure provided in Civil Procedure Code, 1908 for execution of its decree—Judgment-debtor could be sent to civil prison for one year–Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful—Constitutional petition was allowed in circumstances.

2015 SCMR 128 SUPREME-COURT
AMJAD IQBAL  VS   Mst. NIDA SOHAIL

Ss. 5, Sched. & 13(3)—West Pakistan Land Revenue Act (XVII of 1967), S. 90—Family Court—Decree for maintenance, execution of—Attachment and sale of judgment-debtor’s immoveable property—Section 13(3) of the West Pakistan Family Courts Act, 1964, empowered the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue—West Pakistan Land Revenue Act, 1967, provided various modes of recovery of arrears of land revenue and one of the modes provided was selling the immovable property of the defaulter.

 2015 CLC 667 LAHORE-HIGH-COURT-LAHORE
SAIMA PERVEEN VS  NAEEM AHMAD NASIR

S. 5, Sched. & S.13—Constitution of Pakistan, Art.199—Constitutional petition— Maintenance allowance— Execution proceedings—Order of attachment of property of husband by Family Court—Subsequent agreement to sell regarding the property attached by the Family Court in the execution proceedings of a decree for recovery of maintenance allowance—Effect—Plaintiff (wife) filed suit for recovery of maintenance allowance for herself and for minors—Trial Court decreed the suit—Plaintiffs being dissatisfied preferred appeal and the appellate court awarded maintenance to minors @ Rs.25,00 per month from the date of institution of suit with an increase of 25% after every three years and @ Rs.15,00 per month to plaintiff (wife) from the date of institution of suit till she was divorced—Plaintiff (wife) after dismissal of constitutional petition of defendant (husband) against the judgment and decree of the appellate court filed an application for restraining respondent (husband) from alienating his share in the property, which was accepted by the executing court—Defendant (judgment debtor) did not appear to execute the decree, therefore, the property in question was attached—Respondent (objector) filed objection petition for setting aside order of attachment of the property on the strength of decree having been passed by the appellate court for specific performance of agreement to sell— Contention of the wife was that the respondent (objector) was brother-in-law of the respondent (husband) and they in connivance with each other had tried to frustrate the object of decree passed by the Family Court in favour of the wife and minors on the basis of a subsequent agreement to sell the property in dispute and decree passed by the appellate court in favour of the respondent (objector)—Pleas of the respondent (objector) were that he being the decree holder was entitled to have the fruits of said decree; that the property in question could not be attached in the execution proceedings for recovery of maintenance allowance passed in favour of the wife and minors—Validity—Agreement to sell dated 8-8-2007 was executed by husband in favour of respondent; suit for specific performance was filed on 3-1-2008, which was dismissed by the civil court, however, the appeal filed by respondent was accepted vide ex parte judgment and decree dated 28-12-2008—Agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of respondent (objector) were all subsequent events to the decree of maintenance allowance passed in favour of the wife and minors; respondents (husband and objector) being close relatives in connivance with each other had tried to frustrate the decree of maintenance allowance passed in favour of the wife and minors—Any agreement to sell executed by the respondent (husband) regarding his property after the decree passed against him was illegal and unlawful and did not create any right in favour of the subsequent purchaser (objector)—Sale-deed executed by husband was result of fraud and connivance which could not be allowed to be made a tool to frustrate the judgment and decree of maintenance allowance passed in favour of the wife and minors—Appellate Court had failed to apply its judicial mind while passing the judgment and decree—Constitutional petition was allowed in circumstances.

2015 YLR 316 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD AMIN  VS  JUDGE, FAMILY COURT, SAHIWAL

Ss. 13, 17 & 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for recovery of maintenance allowance—Execution of decree passed by the Family Court—Procedure—Application for withdrawal of surety bond—Scope—Applicant stood surety of judgment-debtor who was arrested in execution of decree—Surety moved an application to absolve him of the liability arising out of surety bond but same was dismissed by the Executing Court—Validity—Section 17 of West Pakistan Family Courts Act, 1964 excluded the application of Civil Procedure Code, 1908 except Ss. 10 & 11 of the same—Procedure set out in O. XXI, C.P.C. for execution of civil decree need not to be followed by a Family Court—Family Court had been vested with the discretion as to how it would order for recovery of a money decree passed by it—Such discretion had to be exercised at the time of passing a decree—Money decree was to be recovered as arrears of land revenue only if court had so directed at the time of passing of the same—Family Court might follow any procedure for implementation of its money decree including the arrest of judgment-debtor and attachment of his property if such direction had not been made by the same—Surety was as much bound by his undertaking as was the judgment-debtor—Both surety and judgment-debtor were collectively and severally liable to make payment to the decree-holder—Surety would not be absolved of his liability if judgment-debtor was sent behind the bars—Surety was to be conscious of his liabilities and he could not be allowed to evade from the same—Constitutional petition was dismissed in limine.

 2014 PLD 429 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD BASHIR VS  ZARINA BIBI

Ss. 13 & 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for recovery of maintenance allowance—Execution petition—Submission of surety bond—Attachment of property of surety—Scope—Decree holder filed execution petition wherein judgment-debtor was arrested and petitioner, his father submitted surety bond of Rs.1,00,000—Judgment-debtor committed default in payment of decretal amount and Executing Court attached property of surety and ordered the auction of the same—Judgment-debtor appeared in custody and offered to deposit the decretal amount in installments and Executing Court accepted the offer—Judgment-debtor deposited one installment with the court auctioneer—Surety/petitioner prayed for abandonment of the court auction but same was refused—Validity—Judgment-debtor had arranged the surety and Executing Court had accepted the surety bond—Surety was not party to the suit who deposited Rs.1,05,000 with the court auctioneer and fulfilled his obligation, his property could not be auctioned—Contract of surety had provided that in case the judgment-debtor failed to appear before the court the surety would deposit Rs.1,00,000 who had never undertaken or assured that he would pay the decretal amount in case of failure of the judgment-debtor to pay the same—Contract of surety had provided that maximum surety under the contract was Rs.1,00,000—Executing Court had erroneously observed that surety had to pay the entire decretal amount—Order of Trial Court did not find mention that the judgment-debtor would arrange a surety for the payment of the entire decretal amount—Judgment-debtor was to provide a surety amounting to Rs.1,00,000 for balance decretal amount—Impugned order was set aside and order for auctioning the immovable property of surety/petitioner was declared without lawful authority—Constitutional petition was allowed in circumstances. 2013 PLD 557 SUPREME-COURT

 2013 PLD 557 SUPREME-COURT
HUMAYUN HASSAN  VS  ARSLAN HUMAYUN

Ss. 13(4) & 5, Sched.—Decree for maintenance of child passed by Family Court—Jurisdiction of Family Court (Executing Court) to execute such decree—Scope—Son (who was a minor at the time) filed a suit for maintenance against his father—Family Court passed a decree in favour of the son, which decree attained finality up to the Supreme Court—During pendency of execution proceedings of the said decree son crossed the age of 18 years and attained age of majority—Father moved an application before the Executing Court (Family Court) contending that his son had reached age of majority, therefore, he was under no obligation to pay further maintenance, and the execution petition should accordingly be dismissed—Executing Court (Family Court) dismissed application of father finding that it was in the interest of justice, equity and fair play that father should maintain his son up to the time that he completed his education and became a working hand—Constitutional petition filed by father against order of Executing Court was also dismissed—Legality—No specific judgment and decree had been passed in favour of the son, directing the father to provide maintenance to the (adult) son, even after he had attained the age of majority or had ceased to be a minor—Executing court had no jurisdiction to go beyond the decree and thus could not require and direct the father to continue paying the maintenance to his adult son, only for the reason that he was still studying—Decree passed by Family Court, which had attained finality, contained no specific command to the effect that it should remain in force even beyond the majority of son , thus it ceased to have effect automatically the day the son attained 18 years of age—Executing court was divested of its jurisdiction to enforce the decree further and could not extend its life, when it had lapsed—Execution proceedings initiated by the (adult) son against his father for enforcement of decree of Family Court came to an end from the date the son attained age of majority i.e. 18 years—Appeal was allowed accordingly and judgments of High Court and Executing Court were set aside.

2013 PLD 557 SUPREME-COURT
HUMAYUN HASSAN vs  ARSLAN HUMAYUN

Ss. 13(4) & 5, Sched.—Decree for maintenance of child—Principles relevant for passing such decree—Scope—Jurisdiction of Family Court (Executing Court) to execute a decree for maintenance of child—Scope—Son (who was a minor at the time) filed a suit for maintenance against his father—Family Court passed a decree in favour of the son, which decree attained finality up to the Supreme Court—During pendency of execution proceedings of the said decree son crossed the age of 18 years and attained age of majority—Father moved an application before the Executing Court (Family Court) contending that his son had reached age of majority, therefore, he was under no obligation to pay further maintenance, and the execution petition should accordingly be dismissed—Executing Court (Family Court) dismissed application of father finding that it was in the interest of justice, equity and fair play that father should maintain his son up to the time that he completed his education and became a working hand—Constitutional petition filed by father against order of Executing Court was also dismissed by the High Court—Legality—Where a court of law was to adjudicate upon parental obligations of a Muslim it was only the legal principles concomitant to such obligations which were relevant and not the social or moral principles—Father or any of the parents in a given case, might be under a social or moral expectation, compulsion or obligation to maintain a minor offspring for as long as the offspring did not attain the requisite physical, mental, intellectual and financial capacity to survive and sustain on his own but present case before the Trial Court was only in respect of maintenance of a minor son by his father which issue, on the legal plane, could not have been stretched by the Executing Court (Family Court) and High Court to a stage beyond the son’s minority by blurring the distinction between social and moral obligations and legal obligations under the principles of Muslim personal law—Appeal was allowed accordingly and judgments of High Court and Executing Court were set aside.

 2013 PLD 41 LAHORE-HIGH-COURT-LAHORE
Mst. NADIA BIBI VS  ADDITIONAL DISTRICT JUDGE

Ss. 13, 5 & Sched.—Constitution of Pakistan, Art.199—Constitutional petition—Return of benefits in lieu of dissolution of marriage on basis of Khula—Return of benefits by wife in lieu of Khula—Scope—Suit for dissolution of marriage on basis of Khula was decreed in favour of wife (petitioner) without any condition—Husband subsequently filed petition for return of benefits of Khula, which was allowed by Revisional Court—Validity—Suit for dissolution of marriage was decreed in favour of wife without any condition for return of anything in lieu of Khula—Court could dissolve marriage on basis of Khula without fixing any condition qua return of benefits received by wife as a result of marriage—Under S.13 of West Pakistan Family Courts Act, 1964, execution only lay against a judgment/order and decree in favour of a party, but in the present case, no order or decree especially a decree for money was passed in favour of husband and therefore, his petition praying for return of benefits should have been dismissed—Revisional court made an error while passing impugned order, which was set aside accordingly—Constitutional petition was allowed, in circumstances.

2012 PLD 148 LAHORE-HIGH-COURT-LAHORE
SULTAN AHMAD  VS JUDGE FAMILY COURT

S. 13—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of maintenance allowance for minors—Execution of decree—Petitioner, who was the paternal grandfather of the minors, assailed order of Executing Court whereby house belonging to the petitioner was attached and ordered to be auctioned—Petitioner contended that he was not a party to the suit and the judgment debtor was alive as well as physically and mentally fit, therefore, the decree could be executed against him and not any other person—Validity—Admittedly, the petitioner was the paternal grandfather of the minor decree-holders and the father, who was the judgment debtor, was avoiding satisfaction of said decree by hiding—Executing Court had no alternative but to pass the impugned order—Minors could not be left merciless and unattended—When the judgment-debtor father, who was the real son of the petitioner, was not available, the petitioner (grandfather) was bound to provide maintenance allowance for his grandchildren—Constitutional petition was dismissed.

2012 PLD 392 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD ASLAM  VS  AYYAN GHAZANFFAR

S.13—West Pakistan Land Revenue Act (XVII of 1967) Chap.VIII–Enforcement of decree—Procedure—Family Court was empowered to direct recovery of decree amount from the arrears of land revenue and Chapter VIII of the West Pakistan Land Revenue Act, 1967 provided procedure for such recovery, and therefore, when a specific procedure had been provided for enforcement of the decree, resort to general provisions of the Civil Procedure Code, 1908 would not be permissible.

 2005 SCMR 1293 SUPREME-COURT
MAVRA ARSHAD  VS  Sheikh EHSAN GHANI

—S. 5, Sched. & S.13—Constitution of Pakistan (1973), Arts.185(3) & 204—Suit for past and future maintenance by minor daughter against her father and paternal-grandfather—Courts below concurrently decreed the suit—Supreme Court disposed of appeal by father and grandfather on their statements undertaking to pay Rs.1,00,000 to minor on or before 15-5-2002 and Rs.25,000 on 10th of each month towards satisfaction of arrears and future maintenance—Minor on non-payment of Rs.25,000 to her on 10-6-2002 filed contempt application seeking compliance of such undertaking by the judgment-debtors (father and grandfather)—Judgment-debtors appeared before Supreme Court, but did not pay any amount to the minor—Supreme Court directed Executing Court to proceed to execute decree and ensure recovery of arrears of maintenance from the judgment-debtors within six months.

2016 MLD 1430 PESHAWAR-HIGH-COURT
Mst. SAIMA TABBASAM  VS  Syed SHER SHAH

S. 13(4)—Civil Procedure Code (V of 1908), O. XXI, R. 32—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for restitution of conjugal rights—Execution of decree for restitution of conjugal rights—Essentials—Direction of Executing Court for personal appearance of wife-judgment-debtor—Scope—Executing Court passed direction for personal appearance of judgment-debtor-wife in execution petition—Validity—Decree for restitution of conjugal rights might be enforced by attachment of property of wife—No mode and manner for execution of decree for conjugal rights had been provided in S. 13(4) of Family Courts Act, 1964—Decree passed by the Family Court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order—Executing Court had to follow the procedure contained in Civil Procedure Code, 1908—Decree for restitution of conjugal rights would become inapplicable of execution if wife had proved non-payment of dower on demand—Only attachment of property of wife could be made in execution of a decree for restitution of conjugal rights—Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights—Executing Court had committed an error by giving direction for personal appearance of wife in execution of decree for restitution of conjugal rights—Impugned order passed by the Executing Court for personal appearance of wife was set aside—Constitutional petition was accepted in circumstances.

2014 CLC 1307 PESHAWAR-HIGH-COURT
MUHAMMAD SOHAIB VS Mst. SHAMEEM AKHTAR

Ss. 17 & 13—Civil Procedure Code (V of 1908), O.XX, R.10—Suit for recovery of movable property which was part of dower—Determination of value of ornaments given which were part of dower—Decree of delivery of such property—Principles—No court may assume the status of an administrator in regard to determination of value of gold or other property without taking recourse to the established principles in this regard and without appointing of a commission as well as examining the statements in respect of prevailing rates of gold from those who remained acquainted with the business of gold or without ascertaining the official market rate of gold prevailing at the time when the marriage was solemnized or at the time of the institution of the suit or when the decree was awarded—Section 13 of the West Pakistan Family Courts Act, 1964 was not helpful in the determination of market value of ornaments (movable property), and was silent on the determination of case of a decree for delivery of such property was unexecutable—Even though C.P.C. was not applied to proceedings before Family Court, for the safe administration of justice, provisions of O.XX, R.10, C.P.C. would be applicable insofar as determination of value of property was concerned.

2013 CLC 492 PESHAWAR-HIGH-COURT
NOSHAD ALI  VS  Mst. AFZANAT RAUF

S. 5 Sched. & S.13—Constitution of Pakistan, Art.199—Constitutional petition—Suit for recovery of dower—Execution proceedings—Wife’s suit for recovery of dower (gold ornaments) was decreed and she filed execution petition—During execution proceedings (husband/judgment-debtor) filed application that the value of gold be determined for payment as was on the date of filing of the suit—Application of husband was concurrently dismissed—Validity—Applicant was duty bound to first pay the gold in kind otherwise he was to pay market value of gold as per rate prevailing at the time of decision of the decree—Application was dismissed.