2008 PLP 775 (CLC)

ZUBDA-TUL-HUSSAIN, J.

The respondents Nos.3, 4 and 5 namely Uzma, Sanobar and Muhammad Zunair, all minors were born out of the wedlock of the petitioner Ghulam Rasool and the respondent No.2 namely Mst. Mussarat. The petitioner and the respondent No.2, however, could not live harmoniously with each other and resorted to family litigation in the form of suit for dissolution of marriage, suit for restitution of conjugal rights and the suit for maintenance allowance. As per averments of the petition, the dissolution of marriage was denied by the learned Family Court to respondent No.2 while the petitioner's' suit for restitution of conjugal rights was decreed but the respondent No.2, Mst. Musarrat, even then did not join her matrimonial life with the petitioner. The suit of respondents for the maintenance allowance was decreed by the learned Judge, Family Court, Faisalabad, granting the maintenance allowance to them @ Rs.500 per month.

2. Dissatisfied with the quantum of maintenance, the judgment and decree was challenged by the respondents before the learned District Judge, Faisalabad, as a result of which the appeal was accepted and the maintenance allowance was enhanced to Rs.1,000 per month. In the execution proceedings the petitioner was arrested and sent to jail, whereafter out of the total accumulated amount of Rs.99,000, he paid Rs.50,000 and as a result of compromise between the parties, he was released when he gave the undertaking that the remaining amount would be paid by the petitioner/judgment-debtor through instalments @ Rs.2,000 per month. The current amount of maintenance of Rs.3000 were also to be paid along with the arrears. Thus, an amount of Rs.5,000 was payable by the petitioner/judgment-debtor every month to, the respondents, which commitment he could not perform and he requested the learned Family Court that he being financially not in a position to pay Rs.5,000 per month, the payment may be deferred for some time, which he shall pay as and when he was able to make the payment. This request was disallowed by the learned Judge, Family Court vide his order, dated 24-2-2008.

3. The legality of this order, dated 24-2-2008 has been questioned by the petitioner through the instant petition on the ground that it is against law and norms of natural justice. It has been maintained that the financial condition of the petitioner could not be ignored by the learned Executing Court. The learned counsel for the petitioner has also relied upon section 14(2) of the West Pakistan Family Courts Act, 1964 and argued that the enhancement in the rate of maintenance allowance was unlawful because the maintenance allowance being only Rs.500 per month. The judgment and decree in that behalf was not appealable. The learned counsel has also asserted that the total assets of .the petitioner being less than wroth Rs.5,000, he could not be arrested in execution of the decree by virtue of the protection available to him under the Relief-of Indebtedness Ordinance, 1960.

4. As is obvious from the facts narrated above, the facility of payment through instalment was given to the petitioner at his own instance and with his own consent. It was only because of this facilitation that he was able to get himself released from the prison. It, therefore, does not lie in his mouth to go back upon his commitment. He is bound by the same and has to face the consequence unless he otherwise makes out a case of legal and factual justification for any variation in the matter settled through compromise. The order of the learned Executing Court is, therefore, justified in law as well as on facts.

5. The contention of the learned counsel that the judgment and decree in favour of respondents Nos.2 to 5 was not appealable is totally misconceived. The bar provided under section 14(2) of the West Pakistan Family Courts Act, 1964, is not operative against a decree-holder, dissatisfied with the quantum of maintenance allowance. It is only the judgment-debtor, who is debarred from questioning the validity of a decree for maintenance allowance of Rs.1,000 per month.

6. The law has always to be interpreted in a manner so as to give a logical and reasonable meaning to it and also to advance the cause grant and object of the relevant legislation. The law relating to the g maintenance allowance is in essence aimed at the welfare of the persons entitled to get maintenance. Any interpretation which is likely to put a clog on such right would run counter to the spirit of the law and thus must be turned down. If a right of appeal against insufficiency of the quantum of maintenance allowance is curbed on the strength of B section 14(2) (ibid) it shall be inhuman, unreasonable and against all norms of logic and law. The only sense that section 14(2) makes in the true perspective of law is that the bar provided therein is against the judgment-debtor and not against the decree-holder agitating against the insufficiency of the maintenance allowance decreed by the Court. In this behalf I am duly fortified by the dictum laid down in Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 and Saeed Alia v. Syed Ghulam Mursalin Naqvi 2004 MLD 306.

7. It is of course true that there. is no estoppel against law and notwithstanding the above mentioned undertaking of the petitioner and the agreed settlement for payment of maintenance and its arrears in instalments, if he proves himself a destitute entitled to the protection of any law for the time being in force, the undertaking and settlement such as mentioned above (arrived at in this case between the parties) may not operate against him as estoppel.

8. Section of the Relief of Indebtedness Ordinance, 1960 relied upon by the learned counsel for the petitioner lays down that no debtor shall be arrested and imprisoned in execution of a decree for money whether before or after the commencement of this Ordinance. The "debt" as defined in section 2(b) of (ibid) Ordinance includes, among other the liability of a debtor payable under the decree or order of a Civil Court for anything recoverable as arrears of land revenue. By virtue of section 2(c) (ibid) "debtor" means a person who owes a debt; and (i) ...; or (ii) ....; (iii) whose total assets do not exceed five thousand rupees. The contention of the 'learned counsel for the petitioner is that the learned Family Court/Executing Court is a Civil Court under the law and the decree for maintenance allowance is executable and its amount recoverable as arrears of land revenue. He has further asserted that the total assets of the petitioner at present do not exceed Rs.5,000 and, hence, he being entitled to the protection available under section 5 (ibid) is immune from arrest in execution of the impugned decree for maintenance allowance.

9. The learned counsel for the petitioner also questioned the observation of the learned Family Court/Executing Court whereby it turned down the request of the petitioner for relaxation of agreed condition of payment on the ground that the same could not be done without the consent of the decree-holder. He referred to section 11 of the said Relief of Indebtedness Ordinance which provides that notwithstanding anything contained in any law for the time being in force or in any contract, a Court may, at any time, on the application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree; whether passed before or after the commencement of this Ordinance, in respect of a debt, including any decree in suit relating to a mortgage by which any loan is secured, shall be paid in such number of instalments and on such dates and subject to such conditions as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit. It is true that in cases where the provisions of section 11 (ibid) are attracted the Court is not bound to get the consent of the decree-holder to direct payment by instalments. Once the Court comes to the conclusion that the case of a judgment-debtor is that of a "debtor" within the meaning of the said Ordinance, 1960 it will be well within its domain to exercise the powers available to it under section 11 (ibid) without the clog of any contract or other law for the time being in force.

10. The impediment to the present writ petition is, however, more than obvious. The plea of the petitioner with reference to section 5 and section 11 of the said Ordinance presupposes that the petitioner is a "debtor" under section 2(c) (ibid) whereas this presumption is not inbuilt or irrebuttable. Nor is it based on admitted facts. The position of the petitioner as "debtor" depends upon the determination of question of fact. This point does not even seem to have been raised before the learned Executing Court, where if raised the learned Executing Court could deal with and decide it in accordance with law. Such factual inquiry cannot be undertaken in the proceedings of the writ petition.

11. The writ petition fails and is dismissed in limine. M.H./G-4/L Petition dismisse