P L D 2001 Supreme Court 128 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Petitioner seeks leave to appeal against judgment dated 23rd June, 1998 passed by High Court, Balochistan whereby Constitutional Petition No.284 of 1997 filed by respondent No.l was allowed and as a consequence whereof the order of executing Court/Family Judge dated 22nd February, 1997 was restored.

2. Succinctly stating facts of the case are that petitioner and private respondent are related to each other as husband and wife. The tie of marriage also exists between them. The respondent No.1 obtained a decree for recovery of prompt dower against the petitioner from the Court of Family Judge, Turbat as back as on 24th October, 1979. However, proceedings for execution of decree were filed by her on 10th November, 1996. Petitioner raised objection on execution of the decree being barred by time. Learned executing Court vide order dated 27‑2‑1997 overruled the objection and directed the petitioner to satisfy the decree. Feeling aggrieved from said order petitioner preferred appeal which came up for hearing before Additional District Judge, Turbat who vide order dated 10th June, 1997 accepted the same, as a consequence whereof execution application of private respondent was dismissed. Under the circumstances a Constitutional Petition was filed by respondent which has been allowed vide impugned judgment by a Division Bench in Chambers of High Court of Balochistan.

3. Learned counsel contended that execution application filed by respondent on 10th November, 1996 for execution of decree dated 24th October, 1979 was hopelessly barred by time, therefore, Additional District Judge/Appellate Court has rightly set aside order of executing Court dated 27‑2‑1997 but learned Division Bench in Chambers of High Court of Balochistan without taking into consideration that under section 48, C.P.C. a maximum period of 6 years for execution of decree has been prescribed and any such application submitted beyond the prescribed period shall not be entertained because due to lapse of time the decree became inexecutable.

4. We have heard learned counsel for petitioner at length and have also examined the impugned order carefully. At the outset it may be noted that respondent while instituting Constitutional petition, challenged order dated 10‑6‑1997 mainly on two scores, firstly the appeal filed by petitioner against order of executing Court dated 27‑2‑1997 was not maintainable under section 14 of the Family Courts Act, 1964, and secondly no period has been prescribed for recovery of dower under the Limitation Act because during subsistence of marriage recurring cause of action accrues to decree‑holder to recover the dower. Learned High Court decided former question against the respondent holding that appeal was competent against order of the executing Court in terms of section 14 of the Family Courts Act, 1964, therefore, this aspect of the case needs no further consideration because in instant petition competency of appeal against an order passed by executing Court is not open to challenge as far as petitioner is concerned.

5. In respect of latter question, however, it was held that decree of dower cannot be refused to be executed being barred by limitation. Therefore, we would confine ourselves only to this aspect of the case. According to Article 103 of Limitation Act all suits for the decree of prompt dower can be instituted within three years from its demand whereas time prescribed for the suit of deferred dower is three years under Article 104 of the Limitation Act. In the instant case as tie of marriage exists between the parties, therefore, decree dated 24th October, 1979 for recovery of dower would be deemed to be in respect of her prompt dower which consists of both the money as well as the property. Now the question for consideration is that what should be the period of limitation for filing of execution application for satisfaction of prompt dower. As far as section 48, C.P.C. is concerned its provisions cannot be pressed into service because under section 17 of the Family Courts Act, 1964 Code of Civil Procedure, 1908 except its sections 10 and 11 is not applicable to proceedings before any Family Court. As far as Limitation Act is concerned under its Article 182113 period for execution of a decree of any Civil Court has been prescribed to be three years but in our opinion as the Family Court is not a Civil Court stricto senso, therefore, the provisions of this Article can also not be pressed into service. Thus reliance has to be placed on the residuary Article i.e. Article 181 of the Limitation Act, which provides the period of three years when the right to apply accrues. As it has been noted hereinabove that nature of the liability is of prompt dower, recognition of which has been made judicially by a Family Court in favour of respondent because the prompt dower is to be recovered during subsistence of marriage, therefore, no specific period of limitation for implementation of decree of such nature can be fixed because due to subsistence of marriage the judgment‑debtor i.e. the husband acknowledges the right of his wife and he is deemed to remain under a legal obligation to satisfy the decree whenever the decree‑holder/wife has moved the legal forum for satisfaction of her right. This proposition can be considered .from another angle i.e. that as tie of marriage exists between parties, therefore, the wife/decree‑holder out 'of number of considerations may have postponed the implementation of the decree including the consideration that let relations between the spouses remain cordial or the husband is looking after her as well as other family members or the husband on account of his poor financial position is not in a position to implement the decree but such postponement for any consideration during subsistence of marriage would not deprive the decree‑holder (wife) from execution of the decree being barred by time and no sooner proceedings of execution are launched that date would be treated as a denial by the judgment‑debtor to satisfy the liability of prompt dower and Execution proceedings shall be considered within time as per requirement of Article 181 of Limitation Act. Thus for the above reasons no interference is called for in the impugned judgment passed by learned High Court of Balochistan. The petition is dismissed and leave to appeal is refused. Q.M.H./M.A.K./S‑84/S Petition dismissed