1999 PLP 216 (MLD)

Ch. Muhammad Tufail for Respondents. Date of hearing: 25th August, 1998. Mst. Parveen Akhtar, respondent No.1 herein, filed a suit for recovery of her maintenance which was decreed on 12-3-1980 in terms of the compromise between the parties. As per condition of decree the petitioner was directed to pay past and future maintenance at the rate of Rs.200 per month and also to make payment of dower amount of Rs.5,

000. The statements and order were signed on 12-3-1980 but, however, no decree-sheet was drawn. The respondent applied for certified' copy of the judgment and decree which could not be supplied as the decree-sheet was not existent. The decree-sheet was finally prepared and signed on 22-2-1990.

2. The respondent applied for execution of decree on 23-9-1989 which was resisted on the ground of limitation. The conflicting pleadings gave rise to the following issues:-- (1) Whether the application is time-barred? OPR. (2) Whether the judgment-debtor has been paying the maintenance allowance to the decree-holder monthly till the date of Talaq? OPR. (3) Relief.

3. After considering evidence, the learned Trial Court decided issue No.1 in favour of the petitioner while Issue No.2 was decided against him and in result the objection petition was dismissed.

4. Feeling aggrieved the respondent went in appeal which was allowed by the learned Additional District Judge, Shakargarh on 3-1-1996 and in consequence, the Trial Court was directed to execute the decree. Against the said order, the present Constitution petition has been filed.

5. The learned counsel for the petitioner argued that the execution Petition could be filed within three years from the date of decree and as it was filed, after more than three years from the date of original decree, the same being barred by time could not proceed. Conversely, the learned counsel for the respondent vehemently stressed that no decree-sheet was prepared till 22-2-1990, the execution could only take place after the preparation of decree, the limitation will run from the date when the decree-sheet was actually prepared and singed and that the execution petition was well within time.

6. The original record was requisitioned and perusal thereof indicates that the decree was passed on 22-3-1980 but no decree-sheet was either drawn or signed at the time of announcement and signing of the judgment. It was a consent decree in terms whereof the petitioner had agreed to pay past and future maintenance at the rate of Rs.200 per month and also to make payment of dower amount. The decree-sheet was drawn and signed on 22-2-1990.

7. Under section 12 of the West Pakistan Family Courts Act, 1964, the Family Court is required to give a decree on announcement of the judgment. Section 13 of the Act provides for execution of decree by the same Court or by such other Civil Court as the District Judge may by special or general order direct. Rule 16 of the West Pakistan Family Courts, Rules, 1965 contemplates that on passing of the judgment, the decree shall be drawn up in Form-I and shall be signed by the Presiding Judge. It further provides that the decree shall bear the seal of Court. The cumulative effect of the provisions of law noted (supra), is that a decree shall follow the judgment of the Family Court which shall be drawn up in Form-I and that it is a decree which can be executed and not the judgment of the Court. The decree-holder can execute a decree within three years from the date of decree, in terms of Article 181 of the Limitation Act, which would commence from the date when the decree was actually drawn and signed. The limitation will not run back to the date of accouncement of the judgment if the decree-sheet is prepared on a subsequent date. Any omission or neglect on the part of Court in performance of its statutory duties cannot be taken as a ground to penalise the decree-holder or to deprive him of his right to execute the decree on account of omission or neglect on the part of the Court. In case "Ghulam Rasool v. Deputy Director, Military Lands and Cantonment. Board and others" (1982 CLC 550), it was ruled that if a decree-sheet is not prepared due to the omission on the part of the Court, the limitation would start from the date when the decree-sheet was drawn and signed by the Court. In "Noor-ud-Din v. Ghulam Mustafa" (PLD 1975 Kar. 688), the rule laid down was that the limitation for filing execution application would run from the date when the decree is drawn up and signed. In a similar situation, it was ruled in "Muhammad Yaqoob and 4 others v. Muhammad Younis" (1988 CLC 390), that the period elapsed between announcement of judgment and signing of decree will have to be accommodated in the period requisite for obtaining copy thereof and neglect on the part of the trial Court in performance of its statutory duty could not be taken as a ground for depriving a party of his right of appeal. In "Government of Pakistan and 4 others v. Niaz Muhammad" (PLD 1967 SC -271), it was ruled by the Hon'ble Supreme Court that the period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies.

8. In this case a compromise decree was passed on 12-3-1980 but no decree-sheet was admittedly drawn up or signed. It was only on 22-2-1990 when for the first time, the decree-sheet was prepared and signed by the learned Presiding Officer of the Court though the date of decree was mentioned as 12-3-1980. In the absence of decree-sheet, the respondent could not execute the decree nor executable decree was existence in law. It is a settled rule, that act of Court shall prejudice no one. The inaction, omission or a neglect on the part of the Court cannot be used as a lever to deprive the respondent of her right to execute the decree. The limitation would obviously start from the date when the decree-sheet was drawn up and signed. In this scenario the execution application filed by the respondent was within time.

9. The learned Appellate Court was also of the view that the limitation for execution of decree would run from the date when the decree-sheet was drawn up and signed and not from the date of announcement of the judgment. The view taken does not suffer from any error of law or jurisdiction and, therefore, no exception can be taken therefrom.

10. Even otherwise, the petitioner is not entitled to any discretionary relief in the extraordinary jurisdiction under Article 199 of the Constitution. The petitioner gave a solemn commitment to make payment of maintenance at the rate of Rs.200 and also payment of dower amount. The decree was passed on the basis of a compromise between the parties. Findings recorded by the executing Court on Issue No.2 are that the petitioner has not paid the decretal amount awarded as maintenance etc. The petitioner raised flimsy objection, with a view to avoid his liability. After having entered upon a compromise, the petitioner was expected to honour the commitment. Any attempt to avoid the commitment, cannot be approved nor any acquitable relief can be granted in discretionary jurisdiction to such-like person.

11. For the reasons noted above, this writ petition is lacking merits which C is accordingly dismissed. A.A./T-51/L Petition dismissed.