2018 PLP 35 (CLCN)

MUDASSIR KHALID ABBASI, J.

This constitutional petition is directed against order dated 25.09.2012 passed by learned Judge Family Court, Darya Khan, District Bhakkar/respondent No.2.

2. Precisely, the facts of the case are that respondent No.1 filed a suit for recovery of maintenance allowance, Rs.27,00,000/- sale price of shop and recovery of dowry articles before respondent No.2. Vide order dated 18.02.2011, suit was decreed in terms of a compromise effected between the parties. Thereafter, respondent No.1 filed an execution petition in which petitioner filed objections. Learned Judge Family Court, Darya Khan, District Bhakkar passed order of attachment of property of the petitioner.

3. Learned counsel for the petitioner contends that impugned order is against the law and facts of the case. Further contends that respondent No.1 has already received the dowry articles. Argued that petitioner is paying maintenance regularly to respondent No.1.

4. Conversely, learned counsel for respondent No.1 opposed the contentions raised by the learned counsel for the petitioner and argued that there is no illegality or infirmity in the impugned order. Furthermore, petition is without any substance; therefore, same is liable to be dismissed.

5. Arguments heard. Record perused.

6. Primary legal question involved in this case is that as to whether the executing Court could pass an order for attachment of the property of the judgment debtor in view of the provisions contained in section 13(3) of the Family Courts Act, 1964. It would be advantageous to reproduce the relevant provision of section 13(3) of the Act ibid herein below:- "

13. Enforcement of decrees. (3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court [46][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."

7. Although mode of execution has explicitly been provided in the afore-cited provision and the applicability of Civil Procedure Code has been excluded in terms of section-17 of the Act ibid however, by now it has become an established law that Family Court might follow the procedure as contained in the Civil Procedure Code for execution of a decree. Reliance is placed on "Muhammad Ramzan v. Ali Hamza and others" (PLD 2016 Lahore 622).

8. Specific provision for the execution of decree does not exclude the powers of the executing Court to adopt any other procedure permissible in law. Much emphasis has been laid down by the learned counsel for the petitioner that sub-clause (3) of section 13 of the Act ibid, only authorizes the executing Court to satisfy the decree through arrears of land revenue.

9. Plan reading of the afore-stated provision makes it explicitly clear that the process of recovery through arrears of land revenue would come in operation only when the trial Court while passing the decree had expressly directed to do so. Whereas, in this particular case no such direction exists. Therefore, it is open for the executing Court to adopt any lawful procedure for the satisfaction of the decree. Reliance is placed on "Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others" (2015 YLR 316) wherein it has been discussed as:- "The very wording in which subsection (3) of section 13 of West Pakistan Family Courts Act, 1964 is couched makes it obvious that the money decree is to be recovered as arrears of land revenue only if the Court so directs at the time of passing the decree. And if no such direction has been made by the Court concerned, it may follow any procedure thereafter to implement its money decree, including the arrest of the judgment-debtor and attachment of his property."

10. It has been categorically laid down by the Hon'ble Apex Court that the Family Court is a quasi-judicial forum which could draw and follow its own procedure provided such procedure is not against the principles of fair hearing and trial. Reliance is placed on "Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others" (2014 SCMR 1365), relevant portion is reproduced herein below:- "Family Court empowered to strike off defendant's defence and pass ex parte decree

Scope

Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principles of fair hearing and trial

Defendant of a family suit, who was duly served, but did not file his written statement within the time allowed to him by the court, the Family Court shall have the inherent power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles enunciated by the Civil Procedure Code, 1908."

11. Another aspect of the case is that the impugned order before learned Single Bench of this Court passed by the Judge Family Court was interim in nature and in terms of section 14(3) of Family Courts Act, 1964 no appeal or revision shall lie against an interim order passed by the Family Court. Section 14(3) of the Act ibid is reproduced hereinbelow:-

14. Appeal:

(3) No appeal or revision shall lie against an interim order passed by a Family Court.

12. Statute excluding a right of appeal from an interim order cannot be bypassed by bringing under attack such interim order in constitutional jurisdiction. Reliance is placed on a case reported as "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" (1996 SCMR 1165).

13. Object of the Family Laws is to resolve the family disputes expeditiously, in order to save the parties from ordeal of litigation and to curb the mischief of delaying tactics.

14. By now it has been consistently laid down by the superior courts that intent of legislature with reference to the Family Courts Act, 1964 was to simplify the procedure bypassing legal complexities. Interference under the constitutional jurisdiction is permissible only in case of any jurisdictional defect or legal infirmity which does not exist in the present case. What has been discussed above, I am not persuaded to interfere in the impugned order dated 25.09.2012 passed by the executing Court. This petition does not succeed and is dismissed. MQ/A-70/L Petition dismissed.