2010 PLP 208 (YLR)

S. ALI HASSAN RIZVI, J.--Muhammad Rafiq petitioner has filed this writ petition challenging the validity of the ex parte judgment and decree, dated 18-1-2007 passed by the learned trial Court as also the order dated 2-2-2009 passed on execution proceedings. 2. A suit for recovery of maintenance was filed by respondents Nos.1 to 5/ plaintiffs on 29-5-2006 against Muhammad Rafiq petitioner/defendant who are his sons and daughters. 3. Ex parte judgment and decree was passed against the petitioner/defendant on 18-1-2007 by the learned Judge, Family Court, Sialkot. On execution proceedings, the property of the petitioner was directed to be attached and sold vide orders dated 1-2-2008, 22-2-2008 and 25-10-2008. An objection petition was filed by Khalil Ahmad real brother of the judgment- debtor/petitioner claiming that the property forming the subject-matter of attachment, was agreed to be sold to him on 27-6-1999. He moved an application setting aside the attachment proceedings and for staying the auction proceedings. An application for condonation of delay was also moved on 25-2-2008 by Muhammad Rafiq petitioner, in his own way under Order IX rule 13 read with section 151 C.P.C. (page 20 of the writ file). The learned trial Judge dismissed the aforesaid application on 2-2-2009 holding that the same was filed in connivance with the judgment-debtor and Muhammad Khalil the objector being real brother of the judgment-debtor/writ petitioner, had no locus standi. It was also observed that the so-called agreement to sell or memorandum did not create any right or interest in favour of Muhammad Khalil. 4. Learned counsel for the petitioner contended that all the proceedings conducted by the learned Judges, Family Court, were behind the back of the petitioner, that the same had no legal efficacy and that the petitioner was not in a position to pay Rs.10,000 to respondents Nos.1 to 5 at the rate of Rs.2000 each. 5. I have gone through the entire record appended with the writ petition Ex parte judgment and decree dated 18-1-2007 could be sought to be set aside on proper showings under section 9(6) of the Family Courts Act, 1964. It appears that no such application was ever moved before the learned trial Court. On an application seeking condonation of delay, provisions of Order IX rule 13 C.P.C. have been invoked. It has also not been shown if the judgment/decree dated 18-1-2007 was ever challenged in appeal. Sale of the property of the petitioner in execution of the decree, was sought to be stayed through his real brother Muhammad Khalil on the ground that the property forming the subject-matter of the attachment and sale was agreed to be sold to him (Muhammad Khalil) on 27-6-1999. Obviously, this application moved by Muhammad Khalil on 7-11-2008 (pages 31-32 of the writ petition) was collusive and suffered from sheer mala fides. It was rightly dismissed by the learned Judge, Family Court on 2-2-2009. 6. The facts of this case show that Muhammad Rafique petitioner is working for gain in Saudi Arabia and is not disposed to pay maintenance to his children who are putting up with their maternal grandfather Muhammad Saleem in Lahore, Pakistan. The conduct of the petitioner appears to be callous towards his children. He is squandering money on litigation but is not paying maintenance to his children. The rate of maintenance of Rs.2000 per head is not, by any stretch of imagination, excessive. It is not denied that respondents Nos. 1 to 5 decree-holders are real sons and daughters of the writ petitioner. 7. For all the above reasons, the orders passed by the learned Judge, Family Court/executing Court are quite legal and must be allowed to reach a logical end. The writ petition is totally misconceived and is dismissed as such in limine. S.A.K./M-259/L Petition dismissed.