2011 PLP 780 (CLC)

IJAZ AHMAD, J.

The respondent No.1, decree-holder filed execution petition for satisfaction of the decree dated 24-7-2010 passed by the learned Additional District Judge, Rawalpindi. The petitioner submitted an objection petition on 23-10-2010 before the executing Court and prayed for stay of the proceedings. The application was dismissed vide order dated 16-11-2010. The revision petition preferred by the present has also been dismissed by the learned Additional District Judge, Rawalpindi vide order dated 16-11-2010.

2. It is contended by the learned counsel for the petitioner that the actual matter relates to the maintenance of Abdul Salaam, the minor son of the petitioner and that of the respondent No.1, that suit regarding the determination of legitimacy of Abdul Salaam, the respondent No.2 is pending adjudication, therefore, the execution of the decree for maintenance of the said respondent should have been stayed by the learned executing Court while exercising jurisdiction under Order XXI, Rule 29, C.P.C., which stipulates that where a suit is pending in any Court against the holder of decree of such Court, on the part of person against whom the decree was passed, the Court may stay the execution of the decree until the pending suit has been decided. Reliance is placed on 1981 CLC 1248 titled Sheikh Muhammad Shafique v. Humayun Kabir and 3 others 2007 CLC 978 titled Prudential Commercial Bank Ltd. through Attorneys

Decree-holder v. West Pakistan Tanks Terminal (Pvt.) Ltd. and 5 others

Judgment-debtors; to argue that by refusing to stay the execution the learned executing Court and the learned revisional Court have committed illegality and material irregularity.

3. I have heard the learned counsel for the petitioner have also gone through the record.

4. In order to resolve the controversy Rule 29 of Order XXI needs to be reproduced:-- "Stay of execution pending suit between decree-holder and judgment-debtor.- Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

5. A judgment in favour of the minor respondent No.2, the co-plaintiff in the suit for maintenance has been "passed by the learned Judge Family Court. A suit for declaration and permanent injunction titled Majid Asghar v. Mst. Fauzia Riaz and Abdul Salaam is pending adjudication in the Court of Senior Civil Judge Rawalpindi. The provision of law referred above stipulates the stay of execution of a decree passed by a Court where another suit is pending against that decree-holder in the same Court. The decree in question has been passed by a Family Court. The suit pending before the learned Senior Civil Judge against the decree-holder, respondent No.2, cannot be said to be a suit pending before the same Court which passed the decree. Another aspect that shall not escape the consideration of the Court is, that this provision of law is meant to satisfy the cross decrees passed under the ordinary law by the Civil Courts. In the case of a, minor plaintiff having a decree for maintenance allowance passed in his favour, its execution in the "remote future will be of no avail to him if he grows up, as an uneducated, under nourished and ill groomed person. Moreover, unless decided otherwise, the presumption is that respondent No.2 is the legitimate child of the petitioner. "The child belongs to the bed, for the adulterer are the stones" The judgments referred by the learned counsel for the petitioner are not attracted to the circumstances. In both the cases, the rival parties were claimant in the civil suits pending or decided by the civil Courts. The execution was stayed to adjust the claims. In the suit filed by the petitioner and pending in the Court, the petitioner/plaintiff has no claim to be adjusted against the maintenance allowance decreed in favour of the respondent No.2.

6. For what has been discussed above, this petition has no force. It is, hereby, dismissed in limine. M.U.Y./M-14/L Petition dismissed.