2004 PLP 1352 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.

Petitioner seeks leave to appeal against order, dated 4-I1-2003, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No.784 of 2003, which was dismissed in limine.

2. Briefly stated that the facts of the case are that respondent No.1 filed a suit for maintenance for herself and a minor daughter against her husband Fazal-e-Raziq before the Court of Judge Family Court, Rawalpindi. As her husband was residing in England, it was the petitioner Muhammad Pervez who contested the suit on his behalf as his General Attorney. The above suit was decreed on 13-5-2002 and a sum of Rs.5,000 per month for each of the plaintiffs was granted w.e.f. July, 1999. The said decree attained finality. On 8-7-2002, the decree holder filed Execution Petition. On 27-1-2003, the petitioner in his capacity of general attorney made a statement before the Court that on the next date of hearing the father of the judgment-debtor would be produced before the Court by him. The original National Identity Card of the petitioner was retained in Court and the petitioner was directed to appear in person one the next date of hearing but on the following date i.e. 3-2-2003 no one appeared on behalf of the judgment-debtor. As a result, the Executing Court issued non-bailable warrants of the petitioner and fixed the next date on 4-3-2003. Thereafter, the petitioner moved an application for recall of the warrants of arrest on the grounds that the power of attorney previously executed in his favour had been revoked vide deed of revocation, dated 7-1-2003 and that the petitioner was only pursuing the case on behalf of the judgment-debtor and was not a judgment-debtor himself and that no liability can be imposed upon the petitioner in this capacity alone. The said application was rejected by the learned Executing Court vide order, dated 7-2-2003. The learned Appellate Court vide judgment, dated 29-3-2003 found no merit in the appeal and dismissed the same on the technical grounds that no appeal lie against the nature of the order passed by the Executing Court. Hence, this petition. The Constitutional petition filed by the petitioner was also dismissed in limine by the learned High Court vide order impugned herein. Hence this petition.

3. Mr. Abdul Rashid Awan, learned Advocate Supreme Court for the petitioner, inter alia, contended that the power of attorney was cancelled by the judgment-debtor and that under the law he could not be held responsible for the payment of the decretal amount; that the non bailable warrants issued by the Executing Court against the petitioner were not in accordance with law; that the impugned order is the result of misreading of the material available on record; therefore, leave to appeal may be granted.

4. We have considered the arguments of learned counsel for the petitioner and minutely perused the material available on the file. The record shows that the petitioner throughout the proceedings defended the cause of the defendant, and it is a well-settled principle that once the decree is passed, the same cannot be allowed to be set at naught through the mala fide act of the defendant/judgment-debtor whereby he may propose to revoke the power of attorney. The Courts are aware of their authority and obligation to implement the decrees passed by them. The judgment-debtor/Fazal-e-Haq is bound to satisfy the decree either himself or through the attorney, who has been throughout representing him in the suit. The impugned order is based on sound and cogent reasons and its relevant paragraphs are reproduced read as under:-- "(11) On no recognizable principles of law can a decree be nullified only because a judgment-debtor acts in a mala fide manner, revokes a power of attorney after the passing of the decree, so that neither the judgment-debtor who is beyond the jurisdiction of the Court nor the attorney are obligated to satisfy the decree. In exercise of writ jurisdiction, this Court shall not act in aid of injustice. (12) The learned counsel for the petitioner has not been able to satisfy the judicial conscience of this Court to overturn the order passed by the learned Executing Court. There is no merit in this writ petition which is hereby dismissed in limine". We further found that the impugned order is neither perverse nor capricious and is the result of proper appreciation of facts and law, which does not call for any interference by this Court.

5. For what has been stated above, this petition being without merit and substance is hereby dismissed and leave declined. M.H./M-84/S Petition dismissed.