1991 PLP 1321 (MLD)

Muhammad Farooq Qureshi Cheshti for Petitioners. Nemo for Respondents Nos. 1 to

3. Date of hearing: 20th February, 1991. The petitioners who are minor daughters of Muhammad Bashir respondent No.3 brought a suit for recovery of maintenance against him which was decreed by the Family Court on 13th April, 1983 and respondent No.3 was directed to pay maintenance at the rate of Rs.200 per month to each of the petitioners. His appeal against this decree of the Family Court was dismissed on 19th of October, 1983 by the District Judge Khushab with the result that the decree attained finality.

2. On 19th of November, 1983 the petitioners applied for execution and enforcement of this decree praying for recovery of maintenance for the period June to November, 1983. On 26th of March, 1983 it was stated on behalf of the parties that they had arrived at a compromise and the petitioners have started living with the respondent and therefore, no further orders were required in the execution petition. On the basis of these statements, the Family Court observed that the petitioners had forgone their right to recover the previous maintenance and the execution petition was dismissed as having been withdrawn.

3. The present petition arises out of a subsequent application for execution filed by the petitioner on 11th of November, 1985 praying for enforcement of the decree for maintenance for the period November, 1983 onwards. An objection was raised by respondent No.4 before the Executing Court that in view of the compromise between the parties recorded in the earlier execution petition on 26th of March, 1955 the decree had become unexecutable. This objection was repelled by the Family Court on 24th of July, 1986. However, the appeal filed by respondent No.3 against this order the Family Court was accepted by an Addl. District Judge at Khushab who was of the view that on account of the compromise between the parties the decree was rendered ineffective and unenforcible. He consequently accepted the objections raised by respondent No.3 and dismissed the execution petition riled by the petitioners who have assailed his judgment dated 4th of February, 1989 by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4. I have heard Mr. Muhammad Farooq Chishti, Advocate on behalf of the petitioners. No one has entered appearance for the respondents.

5. The learned counsel for the petitioners has raised the following three contentions in support of this petition:-- (i) That the order dated 24th of July, 1986 whereby the Family Court had rejected the objection petition filed by respondent No.3 was not open to appeal under section 14 of the Punjab Family Courts Act, 1964 as it was neither a decree nor a decision and as such the lower Appellate Court had no jurisdiction to interfere in the matter. (ii) That the earlier compromise dated 26th of March, 1985, was recorded by the Family Court without following the procedure prescribed by Order 37, Rule 7 of the Code of Civil Procedure and as such, it was not binding on the petitioners who were minors. (iii) Be that as it may, the Additional District Judge has acted illegally in holding that on account of the compromise between the parties the decree was rendered ineffective and unenforcible.

6. The first contention of the learned counsel for the petitioners has no merit. Section 14 of the Punjab Family Courts Act, 1964 provides for appeals not only against the decrees but also against the decisions of the Family Court. True enough that the expression "decision" appearing in section 14 has to be construed ejusdum generis so as to provide for appeals against final and not interlocutory orders/decisions as held by this Court in Syed Muhammad Raza Shah v. Sayeda Salma Gilani and another P L D 1976 Lah. 1015, but in the present case, the order passed by the Family Court on 24th of July, 1986 cannot be said to be interim or interlocutory by nature. By this order the objection petition filed by respondent No.3 was finally rejected and as such proceedings to that extent; terminated. This order, could be construed as a "decision" within the meaning of Section 14 of the Act and was as such appealable.

7. However, there is considerable merit in the other two contentions raised by the learned counsel for the petitioner. Admittedly the petitioners were minors at the time when the earlier execution petition was withdrawn on 26th of March, 1985. While allowing this compromise the Court had acted on the basis of the statement made by their mother who was acting as their next friend. No effort however was made by the Family Court to ascertain as to whether the compromise was for the benefits of the minors. Order XXXII, Rule 7 of the Code of Civil Procedure may not be strictly applicable to the proceedings before the Family Court but, the salutary principle, contained therein could not have been ignored. In Pirzada Mumtazuddin v. Farukh Sultana and another P L D 1960 (W.P.) Kar. 409, it was observed that in law the parents are under a statutory obligation to maintain their children and cannot contract themselves out of it and it is open to the child to object to the compromise which will not be binding on the minor and can be disregarded by the Court if it is against the interest and welfare of the minor. In the present case, no effort was made by the Court to ascertain as to whether the compromise arrived at between the mother and their father was in furtherance of their welfare and interest and it could not have been accepted as ipse dixit.

8. Be that as it may, the order dated 26th of March, 1985 passed by the Family Court and the statement made by the mother on behalf of the petitioners could not be construed as rendering the decree itself ineffective for all times to come. In the earlier execution petition the petitioner has claimed maintenance for the period June to November, 1983 onward and on no principle could the withdrawal for the execution petition be taken as bar to maintainability of the 2nd petition which related to the subsequent period.

9. It is settled law that if after the decree of maintenance, the parties live together, the decree passed in favour of the wife or the children as the case may be, is not superseded nor rendered unenforcible, but can at the most be considered to be in a state of suspense which too is doubtful. One thing is however, certain that is if the father or the husband again fails to maintain his wife or children the decree can be enforced, by filing a fresh execution petition. A useful discussion on the subject may be found in Ghulam Rasool v. Collector Lahore and another P L D 1984 Lahore 495 which though not on all fours with the present case, is of great relevance.

10. For the reasons aforesaid this petition succeeds. The impugned judgment of the Addl District Judge, Sargodha dated 4th of February, 1989 is declared to be without lawful authority and of no legal effect with the result that the order of the Family Court dated 24th of July, 1986 stands restored with no order as to costs. A.A./N-443/L Petition accepted.