2008 PLP 1013 (CLC)

SYED ASGHAR HAIDER, J.

The petitioner is an old and infirm man and father of the judgment-debtor. The backdrop of the controversy is that Muhammad Ashraf married respondent No.1 of his own choice and free will, without the consent and approval of his family, later differences cropped up inter se the parties and respondent No.1 filed a suit for maintenance and recovery of dower and dowry articles. The suit for maintenance was decreed against which an appeal was filed, and was dismissed, thereafter the respondent No.1 filed an application for execution of decree of maintenance and made a prayer for attachment of the property of the petitioners. The petitioners filed an objection petition, which was allowed and execution petition against the petitioners was dismissed by the Executing Court. An appeal was filed by the respondent No.1, which was allowed and the order reversed, aggrieved thereof the petitioners have filed the instant petition.

2. The learned counsel for the petitioners contended that the petitioners are neither the judgment-debtors nor the respondent No.1 has any cause against them, therefore, the order of attachment of their property is patently illegal, further the learned counsel contends that the petitioner No.2 is the brother of the judgment-debtor, he is not bound under any law to satisfy the decree of maintenance, because, he is alien to the same, as far as the petitioner No.1 is concerned, he is an ailing and old man, over eighty years of age and can hardly make both ends meet, he too is dependent for his needs upon his other sons, therefore, he is not in a position to pay maintenance allowance to the respondent. Thus the order against petitioner No.1 is illegal. The points urged were appreciated and attended to by the learned Executing Court and the execution application was dismissed on the ground that there was no material on record to substantiate that the belongings in question are the ownership of the judgment-debtor and not the petitioners, this finding was reversed by the learned lower Appellate Court illegally, because, there was no document or material, which could prove that the belongings in question belonged to the judgment-debtor, therefore, the impugned order is illegal.

3. Conversely, the learned counsel for the respondents submitted that by now it is a settled proposition of law that a paternal-grandfather is bound to maintain the minors especially when the disputed articles are the belongings of the judgment-debtor, in these circumstances they were rightly attached-And ordered to be sold, therefore, the impugned order is unexceptionable.

4. I have heard the learned counsel for the parties and perused the impugned judgment as well as the judgment of the Executing Court.

5. There absolutely is no document on record to prove that the disputed articles are the property of the judgment-debtor, the learned Lower Appellate Court has passed the impugned order without taking into consideration this important fact. Until and unless it is proved that the articles belong to the judgment-debtor, they cannot be put to auction, therefore, the impugned order is not tenable. There is no cavil to the proposition that grandfather is bound to maintain his grandchildren, but the same is subject to certain conditions and requirements. There is categorical assertion by the petitioner No.1 that the respondent No.1 and the judgment-debtor contracted marriage without the approval and consent of the family, further that he is old, ailing person and dependent for his needs on his other sons, therefore, obviously he is not in a position to maintain the minor. If a contrary view was to be taken it should have been based upon evidence and proper inquiry into this matter, to determine the veracity of the claim of either party, it was not done. The judgment-debtor is settled in Saudi Arabia and if a little effort is made, it would not be impossible to trace out his whereabouts to satisfy the decree. Therefore, the order passed by the learned Executing Court is in consonance with the spirit of law while the order/judgment of the lower Appellate Court is not in consonance with legal dictates. Lastly the petitioner No.2, who is brother of the judgment-debtor is not liable under any law to discharge the liability of his brother, his being attorney does not make him liable in this context. In these circumstances the impugned order passed by the lower Appellate Court is set aside and the order passed by the trial Court is restored. However, the respondents are not precluded from proving the liability of the paternal-grandfather for maintenance before the trial Court/Executing Court by producing evidence in this context, if they so desire, by adopting proper procedure. H.B.T./M-92/L Petition allowed.