2016 PLP 1430 (MLD)

SYED AFSAR SHAH, J.

Through the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Mst.Saima Tabassum, the petitioner has impugned the order dated 7.11.2012 rendered by learned Addl. District Judge-X, Peshawar, whereby the appeal filed against the order dated 16.10.2012 passed by learned Civil Judge-XXVIII, Peshawar was dismissed.

2. We have heard arguments of the learned counsel for the parties and gone through the record of the case appended with the petition.

3. The main dispute between the parties relates to the personal appearance of the petitioner/decree-holder in the execution petition pending in the Executing Court. It appears from the record that on one hand, there is a decree for recovery of dower and maintenance allowance in favour of the petitioner/decree-holder while on the other hand, decree for restitution of conjugal rights against the petitioner is also passed in favour of the respondent/judgment-debtor. The argument which weighed with the learned Executing Court is that the decree is of such a nature where both the parties are decree-holders and as such it has to be executed simultaneously, therefore, personal appearance of the decree-holder/petitioner was un-avoidable and it was in that backdrop that the learned executing court vide order herein impugned issued direction for personal appearance of the petitioner/decree-holder. The order was assailed by the petitioner in the appellate forum but with no premium to her and now she has come to this court for the same relief.

4. The moot question which falls for determination before this court is to see as to whether in view of the facts and circumstances of the case personal appearance of the petitioner was required before the learned Executing Court and in this respect Order XXI, Rule 32, C.P.C. can well be referred according to which the decree for restitution of conjugal rights may be enforced by attachment of property. Admittedly, section 13(4) of the West Pakistan Family Courts Act, 1964 provides no special provision specifying mode and manner of execution of decree for conjugal rights. Provisions of S.13(4) provides in general terms that decree passed by a Family Court is to be executed either by the Court which had passed such decree or by any other civil Court as directed by District Judge through a special or general order. Power to execute the decree having been provided for execution such Court can follow the procedure contained in Civil Procedure Code. The decree for restitution of conjugal rights becomes incapable of execution if wife proves non-payment of dower on demand. The only process which can be issued in execution of a decree for restitution of conjugal rights is that of attachment of property. Simple is that in a decree for restitution of conjugal rights wife cannot be compelled to go and live with her husband. The executing court in cases like one at the most could go for attachment of property of the wife.

5. In view of the above, the learned Executing Court by giving direction for personal appearance of the petitioner/decree-holder has landed into the fields of error, resultantly, the petition is allowed and as a consequence thereof, the order of the Courts below with respect to the personal appearance of the petitioner/decree-holder stands set aside. ZC/56/P Petition allowed.