2013 PLP 492 (CLC)

MIFTAH-UD-DIN KHAN, J.

Naushad Ali, petitioner herein, through the instant constitutional petition, has questioned the judgment and decree dated 5-10-2011 of the learned Additional District Judge-V, Kohat, whereby, she though partially accepted his revision petition qua reduction of quantum of monthly instalments but maintained the judgment and decree dated 5-9-2011 of the learned Judge, Family Court, Kohat.

2. The main contention of the learned counsel for the petitioner was that when petitioner being a carpenter by profession earning hardly Rs.14,000/- per month is not in a position to pay monthly instalments, determined by the Courts below and that rate of the decretal gold should have been determined as per market value prevailing at the time of institution of the suit and not from the date of passage of decree, dismissal of his two applications, one for suitable instalments of decretal amount and second for determination of price of gold at the rate, prevalent at the time of institution of the suit as well as partial acceptance of his revision thereagainst is against law and that if the findings of the Courts below are seen in this context, they appear to have been based on misreading and non-reading of evidence, hence, unsustainable.

3. We have gone through the available record carefully and considered the submissions made by the learned counsel for the petitioner.

4. From the perusal of entire record, it reveals that the respondent No.1 herein filed a suit for the recovery of dower, maintenance etc. against the petitioner etc., which was accordingly decreed in favour of the former vide judgment and decree dated 16-2-2010. Thereafter, the respondent filed a petition for the execution of the said decree and, during execution proceedings, the petitioner filed two separate applications qua easy instalments of decretal amount and determination of price of gold at the rate prevailing on the date of institution of the suit, which were accordingly dismissed by the learned Executing Court vide order dated 5-9-2011 and revision thereagainst was partially allowed vide judgment and decree dated 5-10-2011.The learned Judge Family Court, after applying her judicial mind and considering the entire record and financial status of the petitioner, fixed the amount of maintenance etc. and if we accept the plea of the petitioner qua easy instalment, we're afraid, it would take many years, which would amount to depriving the respondents/decree-holders from the benefits of the decree, so passed in their favour. The judgment-debtor has got no vested right to claim fixation of instalments as of right without consent of decree-holder. So far as the second stance of the petitioner qua price of gold at the prevailing rate of the institution of the suit is concerned, the petitioner/ judgment-debtor is duty bound to first pay the gold in kind as the same was decreed in kind, otherwise, he has to pay its market value as per rate, prevailing at the time of the decision of the decree. In this background, we don't agree with the learned counsel for the petitioner that the finding of the learned Courts below is based on misreading and non-reading of evidence. Therefore, we don't feel persuaded to admit this writ petition to regular hearing, which would amount to an exercise in futility and wastage of Court time.

5. For the reasons discussed above, this writ petition being without substance is dismissed in limine. KMZ/18/P Petition dismissed.