P L D 2012 Lahore 165 (PLP)

ASAD MUNIR, J.--.On 29-4-2006, the petitioner filed against her ex- husband, respondent No.1, a suit for the recovery of dowry articles which was allowed vide Judge Family Court, Pattoki's judgment and decree dated 19-3-2008, to the extent that respondent No.1 was ordered to return 16 tolas of gold ornaments to the petitioner. The said judgment/decree remained intact after it was unsuccessfully assailed by respondent No.1 up to the level of the High Court. On 10-4-2009, the petitioner instituted proceedings for the execution of the afore-said decree to seek recovery of the gold ornaments whereafter on 20-11-2009, warrants for respondent No.1's arrest were issued. On 14-12-2009, the petitioner filed an application seeking correction of the decree dated 19-3-2008 by way of the determination of price of the gold ornaments as the decree had not determined their price. By his order dated 15-1-2010, the learned Civil Judge/Executing Court, Pattoki, ordered respondent No.1 to pay the price of the gold ornaments according to the market rate applicable at the time of institution of the suit i.e. 29-4-2006. Against the learned Judge Family Court's order dated 15-1-2010, an appeal was filed by the petitioner whereby the petitioner pleaded for the recovery of 16 tolas of gold ornaments in accordance with the decree dated 19-3-2008 or their price at per the prevailing market rate. Through his order dated 17-2-2009, the learned Additional District Judge, Pattoki set aside Executing Court's dated 15-1-2009 and remanded the case to the learned Executing Court who was directed to determine the value of the gold ornaments by reference to the date of the institution of suit. After remand, the learned Executing Court, by its order dated 12-3-2010, fixedthe price of gold as Rs. 15,000/- per tola in accordance with the price of gold published in the daily "News" on 28-4-2006. The petitioner challenged the learned Executing Court's order dated 12-3-2010 in appeal whereby the petitioner once again sought the recovery of 16 tolas of gold ornaments in accordance with the decree dated 19-3-2008 or their price at the prevailing market rate. However, the learned Additional District Judge, Pattoki, has dismissed her appeal vide judgment dated 21-6-2010 after holding that the rate of Rs.15,000/- per-tola determined by the learned Executing Court is correct and in accordance with law. Feeling aggrieved, the petitioner through this petition impugns the learned Executing Court's order dated 12-3-2010 as well as the learned Additional District Judge, Pattoki's judgment dated 21-6-2010.

2. It has been contended by the learned counsel for the petitioner that the impugned orders are patently illegal as they have gone beyond the decree and have virtually converted a decree for recovery of movable property into a money decree which the law does not allow in execution. In furtherance of this contention, it is argued that decree dated 19-3-2008 directs the delivery of 16 tolas of gold ornaments but the said decree in execution is being treated as if it is a money decree. It has also argued that there is no logic or rational basis to assess the price of gold ornaments by reference to their price in the year 2006 instead of their present market value. In response, the learned counsel for respondent No:l has submitted that the value of the gold ornaments has to be determined by reference to the market value at the date of institution of the suit as has been held in Mst. Mehbooba versus Abdul Jalil (1996 SCMR 1063).

3. I have given due consideration to the arguments advanced by the learned counsel for the parties. Admittedly, the decree dated ?19-3-20'08 is not in the usual form as it directs the delivery of 16 tolas of gold A ornaments but does not state the alternative of money payable in case of non-delivery of the gold ornaments by respondent No.l. Evidently, the decree has not been framed in accordance with Order XX, Rule -10, C.P.C., which provides that "Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had." However, the provisions of Order XX, Rule 10, are not stricto sensu applicable to a decree obtained in a family suit in view of section 17 of the West Pakistan Family Courts Act, 1964. There is also no provision in the West Pakistan Family Courts Act, 1964, similar or g corresponding to Order XX, Rule 10, C.P.C. Thus, a decree passed under the West Pakistan Family Courts Act, 1964, for recovery of dowry articles including gold ornaments or other movable property would be lawful and executable even if does not state the monetary value payable in case the movable property is not delivered.

4. In the instant case, despite the consistent stand of the petitioner that the gold ornaments are lying with respondeht No.1, no effort appears to have been made by the Executing Court to execute the decree . dated 19-3-2008 by ordering respondent No.1 to ,deliver the gold ornaments. Without finding that the gold ornaments are incapable of being delivered, the learned Executing Court has proceeded to determine and recover the price of the gold ornaments as prayed for by the respondent No.1 through his application dated 14-12-2009. It is noticeable that the said application did not assert or imply that the gold ornaments were incapable of being delivered but simply sought the price evaluation of the gold ornaments. Being the judgment debtor, respondent No.1 had no option to insist that he be allowed to pay the price of the C gold ornaments instead of delivering the same. A somewhat similar situation arose in Karthiyani Amma Gouri Amma v. Padmanabha Pillai Narayana (AIR (38) 1951 Travancore-Cochin 176), where the decree passed ordered the delivery of a tree to the plaintiff by the judgment-debtor and in the alternative ordered payment of a certain amount of money as price of the tree. When the judgment debtor deposited the price and sought his discharge, it was held that the question of the enforcement or payment of the money part of the decree arises only when the movables concerned' are not capable of delivery and the judgment-debtor has no option to deny the delivery of the movable property and fall back? on the money portion of the decree. In this perspective, the decree dated 19-3-2008 should have been executed by the learned Executing Court by ordering respondent No.l to deliver 16 tolas of gold ornaments decreed in favour of the petitioner.

5. The learned Executing Court could not order the determination of the price of the gold ornaments without finding that the delivery of D gold ornaments was not possible. However, case-law has been cited to the effect that an executing court can determine the value of the movable property decreed and can do so by reference to the value of the movable property at the date of institution of the suit. Emphasis has been laid on Mst. Mehbooba v. Abdul Jalil (1996 SCMR 1063) to assert that the market rate of gold at the time of institution of the suit and not at any other time is relevant to determine the value of the gold ornaments. However, the facts in the afore-quoted precedent are distinguishable as therein no decree for the delivery of the gold ornaments was passed but only a money decree was passed pursuant to the wife's claim against her ex-husband for recovery of money calculated according to the market value of her gold ornaments forming part of her dowry. Obviously, determination of value by reference to the date of institution suit is allowed to help protect the interests of the decree-holder as in the majority of cases the movable property is likely to deteriorate in value with the passage of time. I may here refer to Tilok Chand v. L.Damodar Dass (AIR (32) 1945 Peshawar 5), where an issue arose about the market price of the wheat received which had been promised through a bond to be delivered to the plaintiff who filed a suit for recovery of the wheat and in the alternative sought its price at the market rate prevalent at the time of the institution of the suit. The wheat was cheaper at the time the bond was written but had become dearer when the suit was instituted. It was held that if the defendant did not deliver the wheat, he was bound to pay its price at the market rate prevailing at the time of institution rather than that prevailing at the time of execution of the bond. The aforesaid precedent illustrates that the rule, having been developed to protect the decree-holder only, would certainly have no application where the value of the movable property gains in monetary terms due to inflation or other reasons. Otherwise, manifest injustice would be caused to the decree-holder who would be greatly prejudiced by the dilution or diminution in the real value of the decree as seems to have happened in the present case by virtue of the impugned orders. However, there would be no objection to such an exercise by the Executing Court provided that the result ensures the decree-holder the fruits of the decree in monetary terms no worse or better than if the delivery of the movable property had been made. In the instant case, the decree orders the delivery of gold ornaments whose market value has increased substantially with the passage of time. Record shows that the value of gold on the date of institution of the suit i.e. 29-4-2006- was Rs.15000/- per tola which increased to Rs.30,000/- per tola on or around 10-4-2009 when the execution proceedings were initiated and has registered a further increase as now the market rate of gold has gone above Rs.50,000/- per tola. Applying the rate of Rs.15000/- per tola` determined by the learned courts below, the petitioner will receive a total amount of Rs.240,000/- against her decree for recovery of 16 tolas of gold ornaments. It follows that the said amount would be sufficient to purchase now about 5 tolas of gold only. In other words, the payment of such amount to the petitioner in real terms would give her the benefit of the value of 5 tolas gold instead of 16 tolas of gold decreed to her. Undoubtedly, such a result would be undesirable as it will not in any way satisfy or discharge the decree.

6. In accordance with the decree, the petitioner has throughout claimed the 'return of her gold ornaments lying with respondent No.

1. As such, the petitioner is entitled to seek recovery of the gold ornaments instead of their value which has given rise to this controversy on account E of the dispute as to the market rate applicable. However, it would result in gross injustice to the petitioner if respondent No.1 does not return the gold ornaments but is allowed to make payment of an amount which is illusory, being not at all equivalent to the price of 16 tolas of gold ornaments. 7.? In the, light of the facts and reasons stated above, I hold that respondent No.l is liable to return 16 tolas of gold ornaments or gold to the petitioner failing which respondent No. I shall make payment of the price as would fetch 16 tolas of gold at the time of payment subject to? ?adjustment or return of any money paid during execution proceedings by respondent No.1 to the petitioner. 8.? Resultantly, this petition is allowed and the impugned orders are set aside with a direction to the learned Executing Court to execute Judge Family Court's judgment/decree dated 19-3-2008 in accordance with the observations made in para 7 above. Parties are left to bear their own costs. M.H./H-35/L?? ?????????????????????????????????????????????????????????????? Petition allowed.