P L D 1971 Peshawar 157 (PLP)

(2) Lai Muhammad appellant brought a suit for the res titution of conjugal rights against the respondent (file No. 10/ 1 of 1967), but that was consigned to the Record Room on 29‑3‑67, because the defendant, Mst. Niaz Parwara, went along with her husband. It was, however, agreed that Lai Muhammad will pay the decretal amount to Mst. Niaz Parwara. (3) On 20‑5‑67, when they came to the Court, so that adjustment with respect to the decretal amount due to Mst. Niaz Parwara may be filed, there was a break in the relations once again. Mst. Niaz Parwara went away with her relations. (4) Lal Muhammad then brought another suit for the restitution of conjugal rights against Mst. Niaz Parwara, and the same was decreed on 18th July 1968. (5) In the meantime, Mst. Niaz Parwara applied for partition of her share and Lai Muhammad deposited the decretal amount of Rs. 188. (6) Lal Muhammad then got the aforesaid amount deposited by him attached as a property of Mst. Niaz Parwara with a view to compel restitution of conjugal rights. This order of attachment was made by Mr. Mahboob Ali Khan, Civil Judge, Peshawar. An appeal was preferred in the District Court, and Mr. Jamaluddin Khan Khattak, Additional District Judge, Peshawar, accepted the same and set aside the attach ment order. In second appeal to this Court, which is reported as Lal Muhammad and another v. Mst. Nfaz Parwara P L D 1970 Pesh. 52, the order of attachment was restored. (7) An application was made by Lai Muhammad in the execution proceedings that though Mst. Niaz Parwara bad stated before the Court that she wanted to go with him, it was just a ruse, and that her only object was to get the attachment order vacated. He added that the declared intention of Mst. Niaz Parwara and her partisans was to take her back from the Court. (8) To this a rejoinder was submitted by Mst. Niaz Parwara that she had even on an earlier occasion gone with Lai Muhammad, but he failed to perform his undertaking, and that if he was prepared to pay the amount to her and hand over the possession of the house decreed after partition. She was quite willing to go with him. (9) On the next day, i.e., on the 8th of May 1970, the Court found that the parties were agreeable to reunion. Mst. Niaz Parwara was directed to accompany Lai Muhammad, and this she did. Following this, an order was passed to the effect that the execution proceedings be filed as fully satisfied and that the attachment order stood vacated. (10) The union was however, of a very short duration. No sooner the spouses went out, it was reported to the Court that Mst. Niaz Parwara declined to go with Lai Muhammad. At this, the Court revoked its earlier order and declared that the property shall remain attached. (11) The last mentioned order of the Court, i.e., the order consigning the execution proceedings after revoking the order of full satisfaction and vacating attachment was not to the liking of Mst, Niaz Parwara and she, therefore, went up on appeal to the District Court. The case came up for hearing before Mr. Muhammad Afzal Sarwar Khan, Additional District Judge, and he by his order dated 23rd July 1970, held that the order of the Court could not be made under section 151, C. P. C., the Court was functus officio; and that he had jurisdiction, because the order was under section 47, C. P. Code, and being not covered by exceptions to sub section (2) of section 2, C. P. Code, was appealable.

2. Feeling aggrieved by the aforementioned order of the learned Additional District Judge, Lal Muhammad has come up on second appeal to this Court, and it has been urged on his behalf that the order passed by the learned executing Court was in exercise of its powers under section 151, C. P. Code, and was therefore, not appealable. In reply, it has been contended that section 47, C. P. Code, was attracted, and since the ex ceptions indicated under subsection (2) of section 2, C. P. Code, were not applicable, the order consigning the execution proceed ings as fully satisfied, was a decree.

3. Now, the very first point that requires to be determined, is, as to whether the initial order dated 8th May 1970, where by the execution proceedings were filed as fully satisfied and the property was released from attachment, related to satisfaction or discharge of the decree. There can be no two opinions that the order related to `satisfaction' as the word is commonly under stood in the English language.

4. The next important question is, whether the Court could suo motu order the restoration of the file and re‑attachment of the property in exercise of its powers under section 151, C. P. Coda. It is well established that the aforesaid provisions cannot be invoked where an alternative remedy under the Code exists. In this case, the alternative remedy for Lal Muhammad was to have made an application to the Court, if the Court had not already noted this, that Mst. Niaz Parwara had declined to accompany him after she left the Court premises, or to have moved the appellate Court subsequently that the order consigning the execution proceedings as fully satisfied was wrong. It ha been conceded that no such action was taken. The Court rather acted suo motu without caring to examine either of the parties and restored the file and re‑imposed the attachment order. The statement of the Chowkidar ought not to have been acted upon for the exercise of the inherent powers of the Court, which have to be used only sparingly in situations, which are not provided for by the Civil Procedure Code. The facts of the cases relied upon by the learned counsel for the appellant are quite distinguishable. In Asgar Ali Mollah v. Surabindu Sen and others (P L D 1968 Dacca 498) the auction sale was procured by practising fraud upon the Court, and it was eventually confirmed. The sale was no doubt set aside in the exercise of the powers under section 151, C. P. Code, but in the instant case, however, there is no allegation of fraud having been practised upon the executing Court. The bare allegation of the Chowkidar of the Court, who had no concern whatsoever officially; that Mst. Niaz Parwara refused to accompany Lai Muhammad, when the spouses went out of the Court premises, would not show that she was not ready and willing from the outset, that it was a fraud or deception practised by her on the Court and the rival party. If she had been examined by the learned executing Court, she might have been able to satisfy the Court, that it was not so, and further, quite possibly, she might have satisfied the Court that though she was ready and willing to go, Lai Muhammad was not taking her; his aim being to keep her in suspense. She might have taken up some other defence; for instance, she was threatened or insulted. Be that, as it may, and order of the Court without affording an opportunity of being heard to the party affected thereby is not sustainable in law; it being in flagrant violation of the principles of natural justice. In Mohan Bashi Saba v. United Bank of India Ltd. and others (P L D 1964 Dacca 316), there was a suit for the recovery of mortgage dues, and the suit had been stayed under section 69 of the East Bengal State Acquisition and Tenancy Act (XXVIII of 1951). No appeal against the stay order was maintainable, nor remedy of revision or review was available. It was, in these circumstances, that section 151, C. P. C. was invoked for vacating the stay order. In Hamejaddi Howladar and another v. Maminaddi Shaikh and another (P L D 1959 Dacca 304) the powers under section 151, C. P. Code, were invoked, because it was found that injury had been done to a party by the act of the Court itself. This is not so in the instant case Paramasivam Pillat v. Periyanayagathammal (A I R 1917 Mad. 157) permits review of judgment passed under a mistake or obtained by fraud upon the Court. This is, however, not the point in the instant case. In Perumal Moopan v. M. K. Venkatacharia (A I R 1922 Mad. 193) the dictum is that a party can invoke section 151, C. P. Code, even if remedy by a separate suit or proceeding is available, but the facts of the present case are, to my mind, more analogous to the ruling reported in Bashir Begum v. Mian Abdul Rehman (P L D 1963 Lah. 408) in para. 13 whereof Anwarul Haq, J., after reproducing the following quotation from Shabir Ahmad, J. in Sher Muhammad and others v. Khuda Bux and another (P L D 1961 Lah. 579):‑ "After a Court has disposed of a matter, it ceases to be seized of it, and cannot, therefore, exercise the powers under section 151 which were vested in it for so long as the matter was pending before it" observed as follows:‑ "It seems to me that, in the first place, section 151 of the Code of Civil Procedure is not to be invoked when there is an express provision in the Code relating to the matter which is sought to be dealt with under section 151, C. P. C. The present application by the defendant, Abdur Rahman; is clearly an application for review of the judgment delivered by this Court on the 18th of April 1962, and if this application is not covered by the express provisions contained in Order XLVII, rule 1, it would merit dismissal of that ground alone. Secondly, the powers conferred under section 151, C. P. C. are not to be exercised once the Court had disposed of the case. In the present case the judgment was delivered on the 18th of April 1962, and under section 33 of the Code of Civil Procedure, a decree is to follow the judgment, and under Order XX, rule 7, the decree has to bear the same date as that of the judgment. The mere fact that the decree has not been drawn up and signed does not mean that the suit is still pending."

5. There is yet another aspect of the case. Shariat recognizes the right of a wife to refuse herself so long as dower remains unpaid. Mst. Rahim Jan v. Muhammad (P L D 1955 Lah. 122) is an authority in point. In the present case, it is admitted that the dower money though deposited by the husband in pursuance of the Court orders and the house decreed in lieu thereof have as yet not passed on to the wife. Rather, the husband has got the money and the house both attached. In this state of record, it is difficult to canvass the argument that payment of dower within the contemplation of Shariat has at all taken place. Quite evidently, disposing power never passed on to Mst. Niaz Parwara and, as a matter of fact, the attachment order has made the dower decree illusory. While it is true that a decree in favour of a judgment -debtor is quite capable of being attached under section 60 of the C. P. Code, but this does not mean that the same will continue to be attachable, even if the decree becomes in-executable. In my view, a decree for restitution of conjugal rights obtained against a Muslim wife becomes incapable of execution, no sooner the wife successfully pleads that dower money had not been actually paid despite a demand made by her, or as is the case here, even' though she has proceeded in execution of the decree obtained by her in respect thereof. Any other view will mean disregard of Shariat in a matter governed by the West Pakistan Shariat (Application) Act. 1962. In the instant case it will be seen in the very first suit, which Lal Muhammad brought for the restitution of conjugal rights (I refer to Suit No. 10/1 of 1967, instituted on 20‑2‑1967) written statement placed on the record by the wife on 29‑3‑1967 contained a categorical assertion that she had obtained a decree for dower and ornaments, and that since the execution petition In that case was already fixed for 29‑3‑1.967, Lal Muhammad had brought the suit to frustrate that. And again in the second suit for restitution of conjugal rights which was instituted on 14‑12‑1967. Mst. Niaz Parwara in her state ment dated 20‑12‑1967 averred that she had gone to her parents after reconcilement inasmuch as her husband had gone back on his promise to satisfy the dower claim. In this state of record, the plea of res judicata that prevailed with B. Z. Kaikaus, J. in Mst. Rahim Jan v. Muhammad is not available to the decree-holder‑petitioner.

6. The upshot of the whole discussion is that after passing the final order, the learned executing Court became functus officio The execution proceedings were rightly consigned to the Record Room, as fully satisfied, and that the order of attachment was also rightly vacated.

7. In the result, the appeal is dismissed. In view of the peculiar circumstances of the case, however, the parties to this appeal should bear their own costs in this Court. K. B. A. Appeal dismissed.