1992 PLP 1365 (SCMR)

‑‑‑‑O. XXI, R.1 & O.XLVII, R.1‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Re‑opening of execution proceedings already finalised ‑‑‑Competency‑‑ Execution proceedings having already been finalised according to law to the knowledge and active participation Of judgment‑debtor, subsequent orders, passed by Executing Court reviewing its earlier order and that of revisional authority were unfounded and unfair besides being coram non judice and without lawful authority were liable to be set aside in Constitutional petition‑‑ Order of High Court declining said relief to petitioner was illegal and liable to be set aside. Muhammad Munir Peracha, Advocate Supreme Court and Abdul Hamid Qureshi, Advocate‑on‑Record (absent) for Appellant. Z. Mahfuz Khan, Advocate‑on‑Record for Respondents Nos.4 and

5. Nemo for the Remaining Respondents. Date of hearing: 181h December, 1991. WALI MUHAMMAD KHAN, J.‑‑‑ Mst. Torsan Jan appellant, through leave of the Court, has called in question the judgment, dated 20‑11‑1989 passed by a Division Bench of the Peshawar High Court, whereby the Writ Petition No.359 of 1986 filed by her for declaring the orders, dated 18‑6‑1986 and 25‑9‑1980 passed by the Additional Secretary, Home and Tribal Affairs Department, Government of N.‑W.F.P., Peshawar respondent No.l and, Additional Commissioner, Malakand Division respondent No.2 respectively, as illegal, without jurisdiction and of no legal effect and by annulling all the proceedings subsequent to the filing of execution application before the Judge, Family Court at Peshawar by the appellant, the execution application was held as deemed pending for further proceedings from the stage of issuance of notice to the judgment‑debtors. Leave was granted as follows:‑‑‑ "We have heard the learned counsel in support of this petition and have gone through the impugned finding of the High Court and forum below. We have come to the conclusion that the only question which needs consideration is that whether the High Court could strike down the entire proceedings subsequent to the filing of the execution application before the Family Court, Peshawar and particularly, when the orders in favour of the petitioner were never challenged." The background of the case resulting in the instant appeal is that Khan Bahadur Dilaram Khan was owner of considerable property being a member of the family of the Ruler of Chitral and having remained his Chief Minister as well. Mst. Torsan Jan appellant was married to his son, namely, Muhammad Suleman khan and the dower fixed by her father‑in‑law was cash amounting to Rs.10,000, a house valuing Rs.10,000 and land measuring 20 Jaribs valuing Rs.30,000 at that time through a Dower Deed dated 11‑11‑1944 executed by Khan Bahadur Dilaram Khan. She filed a suit for the recovery of her dower' before the Judge, Family Court which was registered vide No.9/FC of 1971 and decreed vide order, dated 31‑5‑1971. She filed an execution application before the Judge, Family Court who referred the same to the Deputy Commissioner, Chitral in the exercise of his powers as Collector .for the recovery of the decretal amount from the judgment‑debtors or recovery of the same through attachment and sale of their property. The learned Collector served a notice on the judgment‑debtor but he refused to pay the amount and in consequence the disputed land was attached and transferred to the appellant in part satisfaction of her dower amount. It is worthwhile to mention here that the appellant had sued for recovery of Rs.50,000 as dower amount instead of the house and the land mentioned in dower decd presumably on the ground that the value of the house and land was less than the total amount of Rs.50,000 fixed in the dower deed. The land entrusted to her ir~t1~f~oon of the decretal amount, according to the parties themselves, is the very land which was described in the dower deed. Attaur Rehman and Abdur Rehman respondents 4 and 5 herein are other sons of Khan Bahadur Dilaram Khan from other wife arid they on coming to know of the execution proceedings filed a suit before the Senior Civil Judge, Chitral for declaration and injunction that the Assistant Commissioner, Chitral and Naib‑Tehsildar Dorsh be stopped from delivering the possession of the suit property mentioned as a, b and c in the schedule attached to the plaint to Mst. Torsan' Jan (defendant No.4 in that suit) in execution of decree‑against Khan Bahadur Dilaram Khan. It was alleged in the plaint that the suit property which was attached by the functionary of the Government was given to them by their father in the year 1968 and they were in possession of the same through their mother and consequently the same was not liable to attachment and sale in execution of decree in which they were not parties. The suit was contested, necessary issues in the case framed, evidence led pro and contra thereon recorded and the learned Senior Civil Judge vide his judgment and decree, dated 14‑10‑1978 decreed their suit regarding other property but dismissed the same qua the disputed property. The same was not challenged before higher forums. . Khan Bahadur Dilaram Khan, judgment‑debtor, submitted two applications before the executing Court, the one challenging the correctness of the decree passed by the Family Court against him and the other regarding the delivery of land in lieu of decretal money which was much more in value than the decretal amount. The first was rejected on the simple ground that the Revenue authorities of Chitral had no jurisdiction to set aside the decree of the Family Court and about the latter it was held that 24 Chakorams of land ha6 already been handed over to. the appellant in execution of the decree. However, the Tehsildar Drosh as per his report dated 29‑9‑1980 (pages 40 and 41 of the paper book) recommended that the judgment‑debtor may be directed to pay the decrctal amount of Rs.50,000 and in case he fails to comply with the same then the land may be put to auction and the amount realised, the decree may be satisfied by payment of decretal amount to Mst. Torsan Jan appellant. This found favour with the Deputy Commissioner Chitral and he reviewed his earlier order through which he had finalised the execution proceedings and handed over the possession to the appellant on the refusal of the judgment debtor to pay the amount in cash. This order was challenged before the Additional Commissioner and he, vide his order, dated 26‑5‑1984, set aside the same. Attaur Rehman and Abdur Rahman, respondents herein filed revision petition before the Secretary Home and Tribal Affairs which was accepted vide order, dated 18‑6‑1986 and by setting aside the order of the Additional Commissioner the appellant Mst. Torsan Jan was held entitled to 'receive Rs.50,000 as her dower amount from Attaur Rehman and Abdur Rehman and on their failure to pay the same, she was held entitled to retain the, possession of the suit property. Aggrieved from the same the appellant filed writ petition in which the impugned order was passed. We heard Mr. Muhammad Munir Peracha, Advocate for the appellant, Mr. Z. Mahfuz Khan, Advocate‑on‑Record for the respondents and have perused the record of the case. It is undisputed that the appellant filed a suit for recovery of her dower in the Family Court and obtained a decree against her father‑in‑law, namely, Khan Bahadur Dilaram Khan and in the process of execution of that decree the assistance of Deputy Commissioner (Collector Chitral) was solicited. It is also not denied that Khan Bahadur Dilaram was approached by the executing authorities for the payment of the decretal amount but he refused to pay the same and thereby forcing the Revenue authorities of Chitral to execute the decree through other modes of sale of the property provided under the law. The land in question which, as stated earlier, was included in the Dower Deed was handed over to the appellant in part payment of the decretal amount of dower and the execution finalised in 1978 to the satisfaction of everybody. After more than a year, the judgment‑debtor awoke from his slumber, approached the very authorities who had finalised the execution proceedings and agreed to the payment of the decretal amount which had not been heeded to earlier by him, and prayed for setting at naught their entire proceedings. Neither the judgment‑debtor Khan Bahadur Dilaram Khan in the circumstances of the case had a legal right .to reopen the entire process nor the 'executing authorities had the jurisdiction under the law to reopen the already concluded execution proceedings. It appears that at the time of the execution of the Dower Deed in 1944 the value of the land included in the Dower Deed was much less than the amount fixed as the value thereof and it may be even so at the time of the institution of the suit before the Family Court because she preferred to sue for the amount of Rs.50,000 instead of claiming the property. It is evident that even at the time of the execution of the decree by the Collector Chitral the value of the land was" less than the decretal amount and therefore, at the outset when the judgment debtor Khan Bahadur Dilaram Khan was approached for the payment of the decretal amount, he refused to pay the same and acquiesced in the transfer of the land in satisfaction of the decretal amount. We questioned the parties about the value of the land at present and they frankly admitted that the same may be valuing round about 15 lacs, consequently the urge of the respondents 4 and 5, the sons of Khan Bahadur Dilaram Khan, that the appellant should receive Rs.50,000 in cash and abandon her claim to the property given to her in execution, is understandable. As discussed above, the execution proceedings had already been finalised in 1978 according to law to the knowledge and active participation of Khan Bahadur Dilaram Khan, the subsequent orders passed by the Deputy Commissioner, reviewing his earlier order and that of the Additional Secretary Home dated 18‑6‑1986 are unfounded and unfair besides being coram 'non judice and without lawful authority and were liable to be set aside in the writ petition (in toto) by the High Court. The impugned judgment of the Peshawar High Court declining to grant the said relief to the appellant is illegal and liable to be set aside. The upshot of the above discussion is that we accept this appeal, set aside the judgment of the Peshawar High Court, dated 20‑11‑1989 and also that of the Additional Secretary Home dated 18‑6‑1986 and of the Deputy Commissioner dated 29‑9‑1980 and by restoring the order of the Additional Commissioner dated 20‑5‑1984, declare the disputed property as the ownership of the appellant in lieu of her dower and the respondents 4 and 5 have no right or interest therein. There is no order as to costs. A,A./T‑81/S Appeal accepted.