P L D 2012 Peshawar 142 (PLP)

QAISER RASHID KHAN, J.

Through the instant writ petition, the petitioner is aggrieved of the judgment/order dated 27-1-2011, passed by the learned Additional District Judge-II, Bannu, whereby judgment/order dated 15-10-2010, of the learned Civil Judge-VIII/ Judge Family Court, Bannu was modified.

2. Brief facts leading to the present petition are that the respondent No.1 filed a suit for the recovery of 30 tolas gold as dower and maintenance allowance before the learned Family Court, Bannu. The suit was decreed vide judgment and decree dated 21-6-2008 and maintained right up to the honourable apex Court. During the course of execution proceedings, the property of the petitioner/judgment debtor was attached by the learned executing court and ordered to be auctioned in order to realize the maintenance allowance and the value of 30 tolas gold as worked out by the learned judge, but the same was not accepted by the respondent lady with the plea that she is entitled to 30 tolas gold ornaments in terms of decree. The learned executing Court rejected the application of respondent No.1 and ordered for the submission of auction report regarding the property of the petitioner, vide order dated 15-10-2010, which was in turn impugned by the respondent No.1 in appeal. The learned ADJ-II, Bannu, to whom the case was entrusted, vide her judgment and order dated 27-1-2011, directed that out of the sale proceeds 30 tolas gold ornaments be purchased and given to the respondent No.1. Aggrieved of the said judgment and order, the petitioner has filed the present petition.

3. Learned counsel for the petitioner argued that as the marriage between the parties was solemnized in the year 2008, therefore, the petitioner is liable to pay value of 30 tolas gold ornaments, as per rates prevailing in the said year. He further argued that petitioner did not have the requisite cash amount to purchase 30 tolas gold ornaments for the respondent No.1 and therefore, he offered his property in lieu of dower, which by his estimate is much valuable than the gold ornaments, so decreed against him.

4. Conversely, learned counsel for the respondent No.1 expressed his strong reservations regarding the bona fide of the petitioner. He argued that despite the fact, that the decree granted in favour of respondent No.1, was maintained up to the august Supreme Court of Pakistan, but still the petitioner had made every effort to delay and frustrate the execution proceedings for the recovery of dower on one pretext or another. He lastly argued that respondent No.1 is not willing to accept any property or amount short of 30 tolas gold ornaments, strictly in terms of the decree.

5. Arguments heard and record perused.

6. Undoubtedly, the suit of respondent No.1 was decreed for 30 tolas gold ornaments, where against the matter went up to the august Supreme Court of Pakistan, but with no fruitful results for the petitioner. So, at this stage of the execution proceedings, the learned executing court cannot draw any other inference from the explicit language of the decree. However, the petitioner too, has expressed his total inability to fulfil the demand of 30 tolas of gold ornaments, due to shortage of money, but has simultaneously offered his landed property for the same, the sale of which by his estimate can fetch sufficient amount to purchase decertal gold ornaments for the respondents No.1.

7. For the reasons stated above, by accepting this writ petition the impugned judgments/orders of the learned courts below are modified and the learned Executing Court is directed to put the property of the petitioner to auction by complying with the requisite legal formalities, the sale proceeds whereof be deposited in the executing court, whereafter the learned court shall arrange the purchase of 30 tolas gold ornaments for the respondents No.1 from the market, after properly ascertaining its value and the balance amount be paid to the petitioner. However, in case, the auction of the property is unable to fetch the desired amount then the executing Court may proceed in the matter in accordance with law. K.M.Z./126/P Order accordingly.