P L D 2012 Lahore 392 (PLP)

IBAD-UR-REHMAN LODHI, J.

Through this Constitutional petition, the petitioner, who happened to be paternal grandfather of minors, in whose favour the decree dated 14-5-2011 for maintenance allowance was passed by the learned Judge Family Court, Lahore, has challenged the orders of the Executing Court issuing firstly show cause notice and subsequently the warrants of arrest of the petitioner.

2. In the suit for recovery of maintenance one Ghazanfar Aslam, the father of minors was impleaded as a defendant. The defendant, impleaded as such, was out of country at the relevant time and thus on the basis of a deed of Special Power of Attorney, the writ petitioner was appointed as his special attorney and in his such capacity he on some occasions appeared before the learned Judge Family Court, Lahore in the said maintenance suit but after filing written statement on behalf of the defendant he did not proceed to defend the suit seriously and allow the suit to be decreed. No appeal against such decree was preferred either by Ghazanfar Aslam himself or through his attorney, the present petitioner.

3. When execution petition was filed by the decree holders, the learned Executing Court vide order dated 16-12-2011 directed the petitioner/special attorney of judgment debtor to pay the monthly maintenance allowance of the minors and when the liability as was placed upon the petitioner was called in question by filing an objection petition, it was not only turned down on 19-3-2012 but also show cause notice was ordered to be issued to the petitioner directing him the complete satisfaction of the decree within 15-days. The last order recorded by the learned Judge Family Court, Lahore on 19-4-2012 in execution proceedings is to the effect that non-bailable warrants of arrest of special attorney of judgment debtor/petitioner were issued with a direction to the bailiff of the Court to produce him in custody before the court.

4. At this juncture, the petitioner invoked the Constitutional jurisdiction of this Court praying to set aside the order passed by the learned Judge Family Court as noted above.

5. In support of the petition, learned counsel appearing on behalf of writ petitioner maintains that there is moveable and immoveable property available in Pakistan in the name of Ghazanfar Aslam, the judgment debtor and by attachment and disposal of the same the decree can conveniently be satisfied. He further maintains that after appearing in some informal proceedings in the suit and filing of written statement, the petitioner disassociated himself from the proceedings of court and even a decree granted in favour of the decree holders was not further challenged by way of an appeal. He seriously questioned the issuance of show cause notice and the warrants of arrest for the petitioner in execution proceedings and termed such action as violative to the provisions of West Pakistan Family Courts Act, 1964.

6. Conversely, learned counsel representing respondents Nos.1 and 2/decree holders by referring some interim orders in the proceedings of the suit tried to convince that even interim maintenance was being paid by the present petitioner as special attorney. He refers the Wakalat Nama and written statement filed on behalf of the defendant of the suit, which both the documents were signed by writ petitioner in capacity of special attorney. Learned counsel has placed much reliance on a judgment passed by the Apex Court in case of Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352) and in his view the reported citation is applicable on the case in hand.

7. I have heard the learned counsel for the parties and have perused the record with their able assistance.

8. The West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) is special enactment and provides special provisions. Particularly by virtue of section 13 thereof enforcement of decrees has been dealt with. For convenience, section 13(3) is reproduced herein 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, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder." This Court in case titled Nasir Khan v. Tahira Rashida (1986 CLC 2381) has held that departure from the express provisions of section 13(3) of West Pakistan Family Courts Act, 1964 would be violative to law and the procedure prescribed for execution of money decree in said provision of law is to be resorted to.

9. In case of Mst. Sameena Bibi and 2 others v. Additional District Judge/Appellate Authority, Gujrat and 2 others (2007 CLC 987) it has been held that though provisions of Civil Procedure Code, 1908 were excluded from applicability to proceedings before Family Court by virtue of section 17 of West Pakistan Family Courts Act, 1964, yet general principles there-under could be invoked for due Administration of Justice where no procedure was provided in the West Pakistan Family Courts Act, 1964.

10. The judgment, mainly relied upon by the learned counsel for respondents Nos.1 and 2 i.e. Muhammad Pervez's case (supra), is considered as distinguishable keeping in view the peculiar circumstances of the present case, for, in the reported matter, it was general attorney who appeared on behalf of the defendant in the suit and said attorney made a binding statement before the court to the effect that on the next date of hearing, the father of the judgment debtor would be produced before the court and subsequent to that statement none including the attorney appeared before the court and consequently the executing court issued non-bailable warrants of arrest of the attorney. The attorney in that case defended the cause of defendant throughout the proceedings and keeping in view of such conduct it was held that once the decrees passed the same, cannot be allowed to be set at naught through the mala fide act of the defendant/judgment debtor. Even after holding that warrants were issued for the arrest of attorney were in accordance with law, the Hon'ble Supreme Court of Pakistan still was of the view that the judgment debtor is bound to satisfy the decree either himself or through the attorney. The basic liability was still upon the judgment debtor and not the attorney.

11. In the present case, the learned Executing Court vide order dated 30-7-2011 has proceeded to attach the Toyota Corolla Car having registration No.LEF-1130 for satisfaction of the decree. Even otherwise the decree holders on 30-7-2011 have placed on record of the execution file a "Fard Taleeqa" mentioning 8 items of moveable properties of judgment debtor. During proceedings in the present petition, the learned counsel for petitioner has mentioned some immovable property still in the name of judgment debtor Ghazanfar Aslam, situated within Pakistan. With C.M. No.3 of 2012, learned counsel for petitioner placed on record some documents including a transfer letter of a plot being maintained by the Punjab Cooperative Housing Society Limited, Defence Road, Lahore, showing that both spouses i.e. Ghazanfar Aslam and Shabana Ghazanfar are transferees of a plot in the said society.

12. Whenever the question of interpretation of Power of Attorney is considered, it is now a consensus on the point that deed of power of attorney is strictly to be construed and a power which has not been assigned in specific terms cannot be presumed to have been given by the principal to the attorney. The attorney in this case when extended the power to defend the suit on behalf of the defendant was never provided with any liability to the effect that in case of any possible decree against defendant/judgment debtor, the same can equally be executable against the attorney. Even in Muhammad Pervez's case (Supra) the Hon'ble Supreme Court of Pakistan is of the view that it is the judgment debtor Fazal-e-Haq who is bound to satisfy the decree either himself or through attorney. Keeping in view such findings of the Hon'ble Supreme Court of Pakistan, the attorney in his independent capacity cannot be booked for satisfaction of decree which was never granted against him.

13. The Family Court after passing a decree which relates payment of money is empowered to direct that the amount of decree be recovered as arrears of land revenue and on recovery shall be paid to the decree holder. Chapter VIII of the West Pakistan Land Revenue Act, 1967 (Act XVII of 1967) provides the procedure for collection of land revenue and when in Special Law a specific procedure has been provided for enforcement of decree the resort to general provisions of Civil Procedure Code would not be permissible.

14. The result of the above discussion is that this petition is allowed and the orders impugned herein are declared to have been passed without lawful authority, thus are set aside.

15. The learned Judge Family Court/Executing Court is directed to proceed in view of section 13(3) of West Pakistan Family Courts Act, 1964 and direct the revenue authorities to recover the decretal amount as arrears of land revenue. The information as noted herein above with regard to moveable and immovable property belonging to the judgment debtor Ghazanfar Aslam be collected from the record by the learned Executing Court and in addition to that the writ petitioner Muhammad Aslam is also directed to appear before the learned Executing Court on 16-5-2012 and to render every possible assistance and to provide full particular of the assets of Ghazanfar Aslam within limits of Pakistan in order to further subject the same to process of law to be adopted by the learned Executing Court or the revenue authority as the case may be. The learned Executing Court is expected not to give any extension in time to the revenue authority to the time frame already provided in Chapter VIII of Land Revenue Act, 1967, so that the minors who are still in search of execution of decree for maintenance allowance since last one year can be adequately compensated at the earliest. K.M.Z./M-181/L Order accordingly.