2026 PLP 298 (MLD)

Tariq Mehmood Jahangiri, J.

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed order dated 06.10.2016, passed by learned Judge Family Court, West-Islamabad, whereby petition for execution of order dated 08.07.2009, was dismissed and judgment dated 18.09.2021, passed by learned Additional District Judge (MCAC), West-Islamabad, whereby appeal was also dismissed.

2. Succinctly stated, facts of the case are that respondent No.1 during the wedlock with petitioner, filed a suit before family Court for dissolution of marriage on the basis of khula, recovery of dowry articles, maintenance, etc. which was contested by the petitioner by filing written statement. During the pendency of suit, learned Judge Family Court dissolved the marriage vide order dated 08.07.2009, by way of khula, subject to the condition of returning 25 tolas of gold given to respondent No.1 at the time of marriage as dower. The petitioner filed petition for the execution of order dated 08.07.2009, which was dismissed. The case got a history as the parties, on the issue of objection petition had gone to different Courts including Hon'ble Islamabad High Court through Writ Petition No.1195 of 2017 and the case was remanded back. Thereafter, final appeal of the petitioner was dismissed vide impugned judgment dated 18.09.2021. Being aggrieved the petitioner filed instant writ petition.

3. Learned counsel for the petitioner, inter alia, contends that both the Courts below have primarily held the plea of the petitioner untenable for the reason of limitation and wrong description of the execution application; law of limitation is not applicable to the proceeding before the family Court; there is no denial of the fact that respondent No.1 has, without returning 25 tolas of gold, entered into a second marriage; valuable rights of the petitioner have been jeopardized, hence impugned orders are liable to be set aside.

4. Conversely, learned counsel for contesting respondent states that learned lower Courts have decided the case of the petitioner strictly in accordance with law, hence the instant writ petition is liable to be dismissed.

5. Arguments advanced by both the parties have been heard and record has been perused with their able assistance.

6. It is mentioned in order dated 08.07.2009, passed by Senior Civil Judge /Judge Family Court, Islamabad that: "Pre-trial proceedings are declared un-successful and in view of the statement of plaintiff recorded today, plaintiff's suit for dissolution of marriage is decreed on the basis of khula, subject to return of dower i.e. 25 Tolas of gold by the plaintiff. Matrimonial tie shall stand dissolved as and when the plaintiff will return the dower amount."

7. Issues were framed on the same day, evidence of the parties was recorded and the suit filed by respondent was partially decreed vide judgment dated 14.11.2014. It is mentioned in the "relief clause" of the judgment that marriage between the parties already dissolved on 08.07.2009, in consideration of return of dower.

8. Order for dissolution of marriage was passed subject to the condition of return of dower i.e. 25 tolas of gold by respondent No.1.

9. The petitioner filed petition for the execution of order dated 08.07.2009; objection was filed by respondent No.1 and execution petition was dismissed vide order dated 13.01.2010, on the ground that decree for dissolution of marriage was passed on the basis of khula with the condition of return of dower amount; order dated 08.07.2009, is very clear and elaborate and respondent No.1 cannot be directed to return the dower amount for dissolution of marriage, meaning thereby if the dower is not returned then respondent No.1 shall not be entitled for decree for dissolution of marriage.

10. Again execution petition was filed on 02.10.2015, for execution of decree dated 14.11.2014; objection was filed and execution petition was dismissed on the same ground that Court has given conclusive judgment with regard to the dissolution of marriage on the basis of khula since inserted the words "matrimonial tie" shall stand dissolve as and when respondent will return dower amount" indicates that a conditional judgment was passed and its outcome rested upon the respondent that if she returned the amount, the matrimonial tie will then be dissolved, so execution petition was dismissed.

11. Appeal against order dated 06.10.2016, was allowed by learned Additional District Judge, West-Islamabad vide order dated 06.12.2016; respondent No.1 challenged the order before this Court and vide judgment dated 04.12.2020, the matter was remanded back to the learned Additional District Judge, Islamabad, for decision afresh. Appeal filed by the petitioner was dismissed vide judgment dated 18.09.2021, almost of same grounds that decree for dissolution of marriage was conditional and without the return of dower amount, respondent No.1 will not be entitled for dissolution of marriage.

12. During the course of arguments, learned counsel for respondent No.1 has informed that respondent No.1 has contracted second marriage, if the order dated 08.07.2009 passed by learned Judge Family Court and judgment / decree dated 14.11.2014, be interpreted in its true spirit then it establishes that without the return of dower i.e. 25 tolas of gold, decree for dissolution of marriage is not in field, which may have very serious consequences upon the new matrimonial life /2nd marriage of respondent No.1.

13. It is admitted by learned counsel for respondent No.1 that order dated 08.07.2009, passed by learned Judge Family Court, whereby decree for dissolution of marriage on the basis of khula subject to return of dower i.e. 25 tolas of gold by respondent No.1 as well as judgment / decree dated 14.11.2014, with the same condition are still intact; respondent No.1 has not challenged them before appellate forums.

14. Hon'ble Supreme Court of Pakistan, in a recent case No. C.P.488-K / 2023, titled as "Sohail Ahmed v. Mst. Samreena Rasheed Memon and others" unequivocally held that when a preliminary decree for dissolution of marriage or Khula, in terms of section 10 of the Family Courts Act, 1964, is granted then the wife shall be ordered to return the dower already received by her. The relevant paragraph reads as under: "

14. The proviso to section 10 empowers the Family Courts to pass a preliminary decree for the dissolution of Marriage forthwith upon the failure of reconciliation and further provides that wife shall be ordered to return the Haq Mehr received by her." (emphasis added)

15. The term 'execution' came under discussion before a Division Bench of the LHC in case titled as "Mohammad Wajid Murshid and another v. Silk Bank Limited", 2021 CLD 744 [Lahore (Multan Bench)] the relevant part of which reads as under: "11 Speaking generally, execution is the enforcement of a decree by a judicial process which enables the decree holder to realize the fruits of the decree and judgment passed by the competent Court in his favor" (emphasis added) The Part II of the Code of Civil Procedure, 1908 (C.P.C.) deals with Execution and its sections 36 to 74 are relevant. Moreover, Order XXI of the C.P.C. prescribes a detailed procedure for the execution of decrees and orders. According to section 36 of C.P.C., petition for execution of orders is competent /maintainable. This section reads as follows: "

36. Application to orders. The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders." (Emphasis added) Hon'ble Supreme Court of Pakistan in the case of "Haji Abdul Wali Khan and another v. Muhammad Hanif and another" 1991 SCMR 2457, enunciated the basic principle which the section 36 of CPC encapsulates and noted the distinction between the terms decree and order. The relevant para is reproduced herein below: "In our jurisprudence, the concept of execution is associated with the execution of decrees and orders, under the Code of Civil Procedure. This Code makes a distinction between a decree and an order which terms are separately defined.... Under section 36 the provisions of the Code relating to execution of decrees, have been made applicable to execution of orders. The principle underlying the provisions of that section is that every Court has an inherent power to have its orders carried out or enforced, otherwise the orders would be a mere farce. It is in this context that the Legislature has empowered the Court executing the decree to determine all questions relating to execution, discharge or satisfaction of the decree and not by a separate suit. It has been held that the object of this section was to save unnecessary expense and delay; and to afford relief finally, cheaply and speedily without the necessity of a fresh suit. However, that section deals with questions that arise between the parties to the suit in which the decree under execution, was passed. The Code of Civil Procedure made special provisions laying down the procedure for third party's claim to possession in his own right, against whom decree for possession cannot be enforced, by Order XXI, Rules 100 and 101." (emphasis added) The above-mentioned position of law has been reiterated in the cases titled as "Muhammad Boota through LRs and others v. Roshan through LRs and others", (2017 CLC Note 150 [Lahore]); "Tajamal Abbas v. Inamullah", 2018 CLC 1833 [Lahore]; "Shaikh Muhammad Tariq v. Messrs Premium Developers through C.E.O." (2022 YLR 1867 [Lahore]).

16. Even according to law, order passed by the Court is liable to be executed. Order XXI Rule 8, C.P.C. is reproduced for ready reference:

8. Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

17. It is a settled principle that where a Court has jurisdiction to adjudicate upon a lis and to pass orders then it can also enforce such orders. Hon'ble Supreme Court of Pakistan recognized the foregoing principle in the case titled as "Izhar Alam Farooqi, Advocate and another v. Sheikh Abdul Sattar Lasi and others" (2008 CLD 149) and held that:

6. It is true that a Court which has the jurisdiction to adjudicate the dispute and pass an order has also implicit power to have the order implemented and mere an erroneous order passed by the Court of competent jurisdiction does not render the order without jurisdiction... (emphasis added)

18. In the case titled as Lall Zaman v. Safdar Ali Khan , 1996 MLD 860 [Chief Court Gilgit] it was held that successive execution petitions can be filed if a decree has not been satisfied. The relevant part reads as under: "Section 48 of the Code of Civil Procedure clearly envisages that decree-holder can move the Court for a number of times for execution of a decree within a period of six years. Also Article 183 of the Limitation Act provides a period of six years to enforce a judgment it, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court." emphasis added)

19. Learned counsel for respondent No.1 has failed to assist the Court on this point that how without the return of dower i.e. 25 tolas of gold, respondent has contracted second marriage and what is the justification of non-compliance of order dated 08.07.2009, and judgment/ decree dated 14.11.2014, which are still intact.

20. In view of above, instant writ petition is allowed, impugned order and judgment dated 06.10.2016 and 18.09.2021, are set aside. Respondent No.1 is directed to make compliance of order dated 08.07.2009, and judgment / decree dated 14.11.2014, and return the dower i.e. 25 tolas of gold to the petitioner within a period of two (02) weeks. UN/116/Isl. ???