2015 PLP 128 (SCMR)

GULZAR AHMED, J.

Mst. Nida Sohail, respondent No.1, had filed a suit for maintenance against Sohail Anjum Malik, respondent No.2, her father, which was decreed on 18-4-1998 in the sum of Rs.2,500 per month. Subsequently, respondent No.1 again filed a suit for enhancement of maintenance, which was also decreed on 8-5-2008, enhancing the maintenance amount to Rs.5,000 per month with 10 per cent annual increase from the date of filing of the suit. Appeal against such decree was dismissed so also the writ petition and the civil petition filed in this Court. The respondent No.1 then filed execution application for recovery of the maintenance amount. As respondent No.2 failed to honour the decree, he was arrested and detained in civil prison. On 22-7-2009 Mst. Kafia, respondent No.3, the second wife of respondent No.2 appeared in the Executing Court and gave an undertaking that if the respondent No.2 fails to pay the decretal amount then she will pay the decretal amount and in case of her failure, her salary be attached and at the same time she deposited an amount of Rs.5,000 towards the decree and on such undertaking, the respondent No.2 was released from custody. On 27-7-2009, the respondent No.2 made Hiba of his residential house in favour of the respondent No.3. On 21-5-2010, respondent No.1 moved an application for recovery of the decretal amount by selling the house of respondent No.2. Respondent No.2 filed objection in which he claimed that the house sought to be sold by the respondent No.1 for recovery of the decretal amount, was transferred by him to his wife Mst. Kafia, the respondent No.3 by way of Hiba and that such house being not his property could not be put to sale for the recovery of the decretal amount. Respondent No.1 in her further application to the Executing Court claimed that the respondent No.2 has made Hiba to respondent No.3, his second wife, only to avoid its sale in execution and was a fraudulent transaction.

2. It appears that the Executing Court through its order dated 14-5-2011 had declared the said Hiba to be unlawful and proceeded to attach the house. This order, as it appears was maintained in revision. The petitioner Amjad Iqbal then appeared before the Executing Court and filed application under Order XXI, Rule 47/58, C.P.C. stating that he has purchased the attached house from respondent No.3 on 7-5-2011 and prayed for discharge of attachment order. This application of the petitioner was dismissed by the Executing Court vide order dated 2-2-2012. Appeal filed by the petitioner was also dismissed vide order dated 28-4-2014 by the learned Additional District Judge, Rawalpindi. The Civil Revision filed by the petitioner in the Lahore High Court, Rawalpindi Bench also came to be dismissed vide order dated 12-5-2014 impugned in this petition.

3. We have heard the learned counsel for the parties and have gone through the record. Learned Advocate Supreme Court for the petitioner has contended that on 21-6-2010, the house in question was attached but on showing Hibanama to the Executing Court through order dated 22-7-2010, the attachment was vacated and the petitioner having purchased the house on 7-5-2011, the same could not have been attached vide order dated 14-5-2011. In support of his submission the petitioner's counsel has relied upon the case of Muhammad Tariq v. Zulfiqar Ali and others (2005 SCMR 1395), Noor Muhammad v. Mst. Zainab Bibi and others (1992 CLC 1470) and Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation and another (1992 CLC 1323). These submissions were adopted by the learned Advocate Supreme Court for the respondents Nos.2 and 3.

4. On the other hand Mr. Kamran Murtaza, learned Advocate Supreme Court for respondent No.1 has supported the impugned order and has contended that both the gift and sale of the house was made only to frustrate the decree of the Court and to avoid payment of maintenance to the respondent No.

1. He contended that almost Rs.900,000 (nine lakh) are due under the decree from respondent No.2 while the house was sold to the petitioner for an amount of Rs.1,000,000 (ten lakh). He contended that the decree is liable to be executed against the house in question.

5. Although the learned Advocate Supreme Court for the petitioner has referred to the earlier attachment order dated 21-6-2010 and its subsequent vacation vide order dated 27-7-2010 but incidentally copies of such orders are not available in the paper-book, therefore, in the absence of these two orders we cannot make any observation nor can give any finding on it. Even otherwise, we do not find that the petitioner has argued this point before the High Court as it does not find mention in the impugned order. The memo of petition filed in this Court also does not contain these facts.

6. As regards the Hiba is concerned, it may be noted that respondent No.2 was taken into custody in civil prison as he failed to satisfy the decree. On 22-7-2009, respondent No.3 the second wife of respondent No.2, appeared in the Executing Court and gave undertaking to satisfy the decree on which the respondent No.2 was released from custody and it was only after 4 days of his such release, the respondent No.2 thought of making Hiba of his residential house in favour of respondent No.3, his second wife. The Executing Court through its order dated 14-5-2011 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner. Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of respondent No.2's own minor daughter. Unfortunately, the respondent No.2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the respondent No. 2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the respondent No.2.

7. On the legal plane, it may be noted that section 17 of the West Pakistan Family Courts Act, 1964 (the Act) provides that the provisions of Qanun-e-Shahadat Order, 1984 and the Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to the proceedings before any Family Court. Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that "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 recover as arrears of land revenue, and on recovery shall be paid to the decree-holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrear of land revenue is by selling the immovable property of the defaulter.

8. We have gone through the case-law cited by the learned Advocate Supreme Court for the petitioner and have noted that none of these cases pertain to the matter under the West Pakistan Family Courts Act, 1964, and therefore are distinguishable from the present case.

9. Therefore, keeping in view the facts and circumstances of the matter and the applicable law, we are of the considered view that order of attachment of the house of the respondent No.2 passed by the Family Court in execution of the decree passed by it, was in accordance with law and the same having been maintained by the Appellate Court and by the impugned order, does not call for any interference by this Court. The petition has no merit, the same is dismissed and leave refused. MWA/A-15/SC Petition dismissed.