P L D 1977 Karachi 469 (PLP)

NAIMUDDIN, J.‑

The relevant facts giving rise to this petition under Article 199 of the Constitution and necessary for the disposal of this petition, briefly stated are: Mst. Khatija Begum daughter of Ali Ausat respondent 1 on the 10th of May 1972 filed a suit being Family Suit No. 731 of 1973, against the petitioner in the Court of XXI Civil Judge and Family Court, Karachi, claiming main tenance for herself and for her three children viz. (1) Fahmida, (2) Nadeem and (3) Naheed. The Family Court decreed the suit ex parte by judgment dated the 30th of April 1974 (wrongly mentioned in the petition 30th May 1974) granted &s. 75 per month to respondent and Ra. 40 to each of three children as maintenance. The Court also granted pendente lite maintenance amounting to Rs. 4,485 for the period from the 1st of June 1972, to the 30th of April 1974 and directed the same to be deposited in the Court by the 31st of May 1974.

3. However, the petitioner filed an application for setting aside the ex parts decree but the same was dismissed by the Family Court by the order dated 10‑8‑1974 on the ground that the game was filed beyond time. Petitioner's appeal against the order before V Additional District Judge, Karachi, also failed.

4. Respondent 1 filed an Execution Application and also simultaneously moved an application under subsection (1) of section 488 of the Code of Criminal Procedure, 1848, for issuance of a warrant to the petitioner for levying the amount due under the decree. The petitioner filed objection against the Execution Application. However the family Court dismissed the objections and by the order dated 18‑4‑1975 ordered as follows :‑

"a warrant be issued against the J. D. (petitioner) under section

488. Cr. P. C. for the payment of entire decretal amount due till 31‑3‑75 as fine and if such amount is not paid then the J. D. (petitioner) is ordered to be convicted and sentenced to suffer S. I. for one month or until payment of the decretal amount if sooner made." Against this order the petitioner filed an appeal being Appeal No. 50 of 1975 in the Court of the District Judge, Karachi, which on transfer was heard by II Additional District Judge, Karachi respondent 2 who dismissed the same by the order dated 23‑10‑1976.

5. It is against the decree dated 30‑4‑1974, and orders 18‑4‑1975 and 23‑10‑1976, that the present petition has been filed.

6. We have heard Mr. Abdul Majid Khan, Advocate for the petitioner in support of the petition and Mr. Habibur Rahman Khan Afridi, Advocate for respondent

1. The only contention raised before us and for the consi deration whereof we had admitted this petition, is that the suit for maintenance having been filed by respondent 1 under section 7 of the West Pakistan Family Courts Act, 1964 (hereinafter called the Act) the decree could not be executed in terms of subsection (3) of section 488, Cr. P. C.

7. It may briefly be stated that under section 5 of the Act a Family Court has exclusive jurisdiction subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961 to entertain suits relating to divorce, dissolution of marriage, dower, main tenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriages and to enforce the claims arising out of any of the above‑noted matter. A suit for maintenance can be filed under the provisions of section 7 of the Act before a Family Court and where such a suit is decreed and the decree relates to the payment of money and the decretal amount is not paid within the time specified by the decree, the Court is empowered under section 13 of the Act to execute it and is further empowered thereunder to direct recovery of the decretal amount as arrears of land revenue and on recovery of the amount to order its payment to the decree‑holder. Therefore, on the basis of the above provisions the learned Advocate for the petitioner argued that if the decretal amount was not paid within the time specified in the decree it could be recovered as arrears of land revenue as provided under section 13 (3) of the Act or by other manner of execution but resort could not be had to the provisions of section 488 (3), Cr. P. C. which was possible only when an application under section 488, Cr. P. C. was filed and order for maintenance was made thereon and in the instant case the proceedings ,sere not initiated by respondent 1 by an application under section 488, Cr. P. C.

8. On the other hand the learned Advocate for respondent 1, submitted that he had filed the pleadings without specifying therein, whether the same was a suit under section 7 of the Act or an application under section 488, Cr. P. C. therefore, it could be deemed to be under both the provisions and when the Family Court passed the judgment and decreed the suit and ordered payment of the maintenance it could be deemed to be acting both under section 7 of the Act as well as under section 488, Cr. P. C. read with section 20 of the Act, and therefore non‑compliance of such a judgment --decree also attracted the provisions of subsection (3) of section 488, Cr. P. C. Alternatively it is submitted that the Family Court has inherent jurisdiction to pass order for issuance of warrant for levying the amount due in manner provided in the Criminal Procedure Code for levying fine and sentencing the judgment‑debtor to imprisonment for the term provided in subsection (3) of section 488, Cr. P. C. In support of the proposition the learned counsel for respondent 1 placed reliance upon Mohludain Mola v. The Province of East Pakistan and others (PLD 1962 SC 119) and Falah‑ul‑Momineen Trust v. V. P. Abdullah (PLD 1970 Kar. 179).

9. The proceedings to enforce a right for maintenance under section 5 read with section 7 of the Act and under section 488, Cr. P. C. are quite distinct and different in nature, as the former are civil and the latter are a criminal or quasi‑criminal and the consequences of non‑compliance of a decree passed under section 12 (2) of the Act and an order passed under section 488, Cr. P. C. are also quite distinct and different. If the decree passed under the Act is not satisfied the decretal amount could be recovered as arrears of land revenue while in consequence of non‑compliance of the order the Magistrate may sentence such person to imprisonment for a term which may extend to one month. Further, it will be noticed that under section 488 Cr. P. C., certain limitations as to quantum of maintenance and the period for which it could be provided have been provided. For instance maintenance for child or wife exceeding Rs. 400 per month in the whole cannot be granted. Similarly the past maintenance also cannot be granted in the exercise of powers under section 488, Cr. P. C. However, no such limitations have been provided under the provisions of the Act. It is also noteworthy that it is open to a person who has been ordered under section 488, Cr. P. C. to pay maintenance but has failed to pay such main tenance to show even after the passing of the order that he has sufficient cause for non complying with the order, but no such cause can be shown after the passing of the decree under the Act. There are several other distinctions which need not be specified hero. Therefore, it is not possible to hold, as submitted by the learned counsel for the petitioner that the proceedings initiated by respondent 1 were both under section 20 of the Act: as well as under section 488, Cr. P. C. No doubt the Family Judge was invested with the powers of a Magistrate, 1st Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898 and he could entertain the pleadings under either of the jurisdictions but he could not simultaneously act under both the jurisdictions in respect of the same subject‑matter as contended, for the two jurisdictions are quit distinct and different in the present case if the provisions of the Act or Section 488, Cr. P. C. were not specified in the pleadings it was open to the Family Court to treat the pleadings, subject to compliance of the provisions of the Act and the rules framed thereunder, as a plaint under section 7 of the Act or an application under section 488, Cr. P. C. and proceed with the case according to the procedure provided therefor.

10. However, we have noticed that in the present case respondent 1 had initiated the proceedings by presentation of a plaint in accordance with the provisions of section 7 of the Act and rule 4 of the West Pakistan Family Court Rules, 1965 (hereinafter called the rues) and they same was registered as a suit. This suit was decreed by the Family Court by the Judgment dated 30‑4‑1974 and thereafter in accordance wish the provisions of section 12 (2) of the Act read with rule 16 a decree was prepared. The conduct of the proceedings right from the presentation of the plaint till passing of the decree shows that the procedure followed was that of a suit as provided under sections 8, 9, 10, 11, 12 of the Act read with rules 4, 10‑A, 14, 15 and 16 of the rules. Further, respondent 1 himself had applied for execution of the decree under section 13 of the Act.

11. Therefore, the proceedings initiated by presentation of the plaint and resulting in passing of the decree could not be considered to be on an application under section 488, Cr. P. C. nor does it otherwise appear that the Family Judge exercised his powers as First Class Magistrate when granting the maintenance. Nor did he follow the procedure provided in section 488, of the Code of Criminal Procedure sad in other provisions of the Sind Code.

12. There is no doubt that a civil Court has inherent jurisdiction or power to attach property of a judgment‑debtor before execution application is competent in order to preserve it so that it may be available for realization of the decretal amount as held by their Lordships of the Supreme Court in Mohiuddin Mulla v. The Province of East Pakistan or to order Police Aid in execution of decree for ejectment despite of absence of such powers in the relevant law as held in Falah‑ul‑Momineen Trust v. V. P. Abdullah but in the two cases cited by the learned counsel for respondent 1 these powers were found either on principle contained and recognised under Order XXXVII, rule 5, Cr. P. C. or under the provisions of section 151, C. P. C. However, in the Act there are no provisions similar to those contained under section 151, C. P. C. Further, the jurisdiction exercised under the Act and by Magistrate 1st Class under section 488, Cr. P. C. are quite distinct and different as stated hereinbefore. Therefore, both the cases cited by the learned counsel for respondent 1 are distinguishable. 12‑A. Therefore, in the absence of an order under section 488 (1), Cr. P. C. it was not permissible for the Family Court to entertain the 'o application under section 488 (3), Cr. P. C. and pass the impugned Order.

13. We are, therefore, of the opinion that respondent 3 acted beyond his jurisdiction in ordering issuance of warrant for recovery of the amount of maintenance and therefore his order is without lawful authority and consequently the order dated 23‑10‑1976 passed on appeal by respondent 2 is also illegal.

14. Accordingly, we allow the petition to the extent that we declare the order dated 18‑4‑1975 whereby respondent 3 directed the issuance of warrant against the petition under section 488 (3), Cr. P. C., for payment of the entire decretal amount to have been passed without lawful authority and is therefore of no legal effect. We also declare the order dated 23‑10‑1976 passed on appeal by respondent 2 to be also of no legal effect.

15. Since the success of the petitioner is partial as he has challenged the legality of the ex parts decree dated 30‑4‑1974 and the two orders dated 18-4‑1975 and 23‑10‑1976 but at the hearing confined his attack against the two orders only, we leave the parties to bear their own costs. S. Q Order accordingly