2003 PLP 1458 (CLC)

S.13(4)

Execution of money decree passed by Family Court-- Section 13(4) of West Pakistan Family Courts Act, 1964, provides that decree shall be executed by the Court which has passed the same or by some other Civil Court directed by special or general order of the District Judge. Saif-ul-Haq Ziay for Petitioner. Brief facts in the instant writ petition are that the execution proceedings are pending before the learned Judge Family Court/executing Court, an objection petition was filed by the petitioner that in view of provisions of section 13(3) read with section 17 of the West Pakistan Family Courts Act, 1964 money decree passed by a Family Court can only be executed and recovered as arrears of land revenue by a Court established under the Land Revenue Act, 1967. This application was turned down and objection petition was dismissed being without merits. Against this order instant writ petition has been filed.

2. Arguments advanced by learned counsel for the petitioner are that against the order passed by the learned executing Court dated 21-12-2002, he has filed an appeal before the learned Additional District Judge, Sheikhupura, who decided the same vide judgment dated 15-2-2003 to the extent of maintenance of minor but a direction was given to the learned trial Court to execute the money, decree passed by Family Court in view of section 13(3) of West Pakistan Family Courts Act, 1964 as arrears of land revenue.

3. I have heard the learned counsel for the petitioner and perused the record. The petitioner has impugned the order dated 21-12-2002 and challenged the same on the grounds that decree dated 15-2-2003 was challenged by the petitioner in appeal and judgment dated 15-2-2003 has become final. The order of the learned executing Court dated 17-4-2000 whereby the judgment-debtor was arrested by the learned executing Court and. sent to civil prison on 16-4-2003 is coram non judice. Even he had no authority to order for release of the judgment-debtor subject to furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the Court and direct him to appear before the Court on 8-5-3003, failing which the surety as well as his property will be dealt with in accordance with law. This order is impugned in the instant writ petition.

4. Provisions of section 13 of the West Pakistan Family Courts Act, 1964 are very clear and does not leave any doubt in respect of the jurisdiction of learned executing Court. Section 13(4) provides:-- "The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may by special or general order direct;" Section 13(3) of the West Pakistan Family Courts Act 1964 is reproduced below:-- "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court not exceeding thirty days the same shall if the Court so directs to be recovered as arrears of land revenue and on recovery shall be paid to the decree-holder." The interpretation of section 13(3) is very clear that it is only "if the Court so directs" then the decree is recovered as arrears of land revenue, it does not show that the decree will be implemented only by the Court of Tehsildar, as in section 13(4) it is clearly written that the decree shall be executed by the Court passing it. However, it is left upon the discretion of learned executing Court that on refusal by the judgment debtor to pay the decretal amount the Court may if so directs can recover the same and assess it as "arrears of land revenue".

5. Arguments by learned counsel for the petitioner that the learned Appellate Court has given this direction which has become final is also not convincing. No Court can take away the jurisdiction which is given to a Court by virtue of provision of law and no Court is competent to pre empt legal jurisdiction of a competent Court under the law. It is clear that the learned Appellate Court has read only section 13(3) and has not read section 13(4) of the West Pakistan Family Courts Act, 1964, which empowers the Family Court who has passed the decree to be the executing Court. The observation of the learned Appellate Court to implement the decree according to the provisions of section 13(3) does not reflect that decree will not be executed by the learned Family Court who has passed the same as provided by section 13(4) of the West Pakistan Family Courts Act, 1964, therefore, the decree in view of provisions of section 13(4) shall be executed by the Court who has passed the same or where the District Judge has by special or general order directed some other Civil Court to execute the same, therefore, arguments advanced by learned counsel for the petitioner are without substance of law.

6. Finding no merits in the instant writ petition the same is dismissed in limine. S.M.B./A-802/L Petition dismissed.