1994 PLP 1681 (CLC)

‑‑‑‑Ss. 47 & 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Judgment debtors' application for discontinuing execution proceedings was rejected by Trial Court and order of rejection of same was upheld by First Appellate Court‑‑‑Both the impugned orders were passed strictly in accordance with law and no illegality had been pointed out so as to warrant interference‑‑ Constitutional petition was, thus, without merit and not maintainable in circumstances. Malik Allah Yar Khan for Petitioner. Muhammad Tufail Gondi for Respondent No. 3 This Constitutional petition is directed against the order dated 20‑7‑1993 of the Addl District Judge, Sargodha by which he has maintained the order dated 31‑1‑1993 of Civil Judge, Sargodha declining to suspend the proceedings for arrest of the petitioner/judgment‑debtor on account of default in payment of maintenance.

2. On 24‑6‑1990 a decree for maintenance of minor sons and daughters, four in number, was passed against the petitioner/judgment‑debtor at the rate of Rs.1,000 per mensem and appeal against this was rejected and thereafter an execution petition was filed and during the proceedings the petitioner was detained on 28‑4‑1992. He however, was released on 2‑5‑1992 on the deposit of Rs.12,

000. Subsequently he again failed to make the payment of the decretal amount and fresh proceedings were commenced for the arrest of the petitioner against which he filed an application before the Executing Court which was dismissed on 31‑1‑1993 and revision against this also met the same fate by order dated 20‑7‑1993 of the learned Additional District Judge, Sargodha. Both these orders are impugned in this writ petition.

3. This petition was entertained on the request of the learned counsel for the petitioner substantial amount of the decree was already paid and there was only default of one instalment and that the petitioner was willing to pay the entire amount. It was further submitted that the matter could be amicably settled and in view of this pre‑admission notice was issued to respondent No. 3 for today. Mufti Muhammad Tufail, learned counsel for the respondent has entered appearance.

4. I have heard the learned counsel and the petitioner present in Court and am of the opinion that the petitioner has violated the undertaking given to this Court on 21‑11‑1993 and is, not in a mood either to pay the maintenance or amicably settle the matter. 1n presence of his learned counsel for the petitioner states that he may be allowed to pay a sum of Rs.500 per mensem which suggestion is not accepted by the learned counsel for the respondent who vehemently submits that after divorcing his first wife the petitioner has married his sister in law and is well placed in the business of livestock which is controverted by the petitioner in a lukewarm manner. Whatever may be the position the fact still remains that the petitioner was detained in prison for the default in payment of decretal amount and released on part payment of the same and thereafter again he has committed default. In these circumstances unless he satisfies the decretal amount, the process of the Executing Court in issuance of warrant of arrest against the petitioner cannot be held in abeyance. The petitioner has admitted that out of the previous marriage he has four children and gives up his claim for their custody and in this way he wants to get rid of his liability to pay the maintenance which is not permissible as this attitude is wholly untenable and cannot be countenanced in any manner whatsoever.

5. The petitioner filed an application for discontinuing the execution proceedings which was rejected by the lower Court on 31‑1‑1993 and revision petition against this was rejected by the Additional District Judge, Sargodha. Both the impugned orders are passed strictly in accordance with law and no illegality has been pointed out so as to warrant interference. For reasons stated above the writ petition being without any merit is rejected in limine. AA/A‑603/L. Petition dismissed.