2019 PLP 1301 (MLD)

M. TABASSUM AFTAB ALVI, C.J.

The supra titled appeal has been preferred against the impugned order of the learned Additional District Judge, empowered as Judge Family Court, Muzaffarabad, dated 4th December, 2018, whereby Raja Mumtaz Ahmad Khan, appellant/ judgment-debtor, was ordered to pay decretal amount of dower Rs.5,00,000/-, to respondent/decree-holder.

2. The facts forming background of the instant appeal are that Mst. Fozia Ismail, respondent, herein, filed a suit for recovery of dower Rs.6,60,000/-, before Judge Family Court, Muzaffarabad, on 3rd September, 2013. The Court below after due process of law, decreed the aforesaid suit in favour of respondent upto the tune of Rs.5,00,000/-, vide judgment and decree dated 31st December, 2015. The aforesaid judgment and decree were maintained upto the Apex Court. After attaining finality, respondent/decree- holder moved an application for execution of the aforesaid decree, before Judge Family Court, Muzaffarabad, on 27th February, 2018. Thereupon, appellant/ judgment-debtor was summoned, who filed objections with the request to fix installment of Rs.3000/pm, for the recovery of decretal amount. The learned Judge Family Court, however, after hearing the learned Advocates for parties, directed appellant/judgment-debtor to pay entire decretal amount Rs.5,00,000/-, in lump sum, vide the impugned order dated 4th December, 2018; hence, the instant appeal.

3. Mr. Muzaffar Husain Mughal, the learned Counsel for appellant/judgment-debtor, contended that Family Court committed error while not fixing installments of decretal amount at the rate of Rs.3000/per month. He further argued that appellant is a laborer, whose income is Rs.8000/-pm, hence, is unable to pay entire decretal amount in lump sum; therefore, keeping in view financial position of appellant, installments may be fixed at the rate of Rs.3000/-pm. He emphasized that section 13(5), of the AJ&K Family Courts Act, 1993, empowers the Family Court to fix installments; however, the said Court failed to consider provisions of the aforesaid section. The learned Counsel contended that the impugned order comes in the definition of decision; therefore, appeal is competent before this Court. He finally craved for acceptance of the instant appeal and placed reliance upon the following case law:-- i. Safina Chaudhary and another v. Zafar Iqbal [2017 SCR 1620]. ii. Mst. Amreen v. Muhammad Kabir 2015 YLR 710 iii. Noreen Akhtar v. Liaquat Hussain 2004 CLC 1397

4. Conversely, Mrs. Bilqees Rasheed Minhas, the learned Counsel for respondent, vehemently submitted that respondent/decree-holder, after attaining finality of decree dated 31st December, 2015, moved an application for execution of the aforesaid decree, before Judge Family Court, Muzaffarabad, on 27th February, 2018, thereupon, appellant/ judgment-debtor was summoned, who filed objections with the request to fix installment of Rs.3000/- per month, for the recovery of decretal amount, and the Court below, after hearing, directed appellant/judgment-debtor to pay entire decretal amount Rs.5,00,000/-, in lump sum, because an observation made by the trial Court in its judgment dated 31st December, 2015, for lump sum payment of decretal amount was upheld upto the Apex Court; therefore, the learned Judge Family Court did not commit any illegality while not fixing installments. She agitated that a study of section 13(5) of the AJ&K Family Courts Act, 1993, reveals that the same is discretionary and not mandatory; therefore, Court below did not commit any error while passing the impugned order. The learned Counsel maintained that if installments are fixed as requested by appellant, at the rate of Rs.3000/- per month, for the payment of decretal amount of dower Rs.5,00,000/-, it will take many years to execute dower decree, which will defeat very purpose of expeditious settlement of family disputes. The learned Counsel contended that an appeal, at the stage of execution of decree, against an interlocutory order regarding fixation of installments, is not competent before this Court, in order to avoid protracted litigation in family affairs; hence, craved for dismissal of the instant appeal and in support of her arguments placed reliance upon the following authorities:

i. Mst. Shahnaz Bibi and 2 others v. Munawar Din (2005 SCR 409). ii. Mst. Nasim Bashir v. Abdul Jabbar (2004 MLD 510) iii. Ijaz Ahmed Siddique v. The District Judge, West Pakistan and 2 others (1988 CLC 634).

5. I have carefully gone through the contents of appeal as well as arguments addressed by the learned Advocates for parties.

6. A perusal of record reveals that Mst. Fozia Ismail, respondent, herein, filed a suit for recovery of dower Rs.6,60,000/-, before Judge Family Court, Muzaffarabad, on 3rd September, 2013. The Court below after due process of law, decreed the aforesaid suit in favour of respondent upto the tune of Rs.5,00,000/- vide judgment and decree dated 31st December, 2015. The aforesaid judgment and decree were maintained upto the Apex Court. After attaining finality, respondent/decree-holder moved an application for execution of the aforesaid decree, before Judge Family Court, Muzaffarabad, on 27th February, 2018. Thereupon, appellant/judgment-debtor was summoned, who filed objections with the request to fix installment of Rs.3000/pm, for the recovery of decretal amount. The learned Judge Family Court, however, after hearing the learned Advocates for parties, directed appellant/judgment-debtor to pay entire decretal amount Rs.5,00,000/-, in lump sum, vide the impugned order dated 4th December, 2018.

7. At the very outset, contention of the learned Counsel for respondent that an appeal, at the stage of execution of decree, against an interlocutory order regarding fixation of installments, is not competent before this Court, has been taken into consideration. As discussed in above paragraph that after attaining finality of the judgment and decree dated 31st December, 2015, from the Apex Court, respondent/decree-holder approached the Family Court for execution of the same. The appellant's prayer to fix installment of Rs.3000/pm, for the recovery of decretal amount, was turned down, who was directed to pay entire decretal amount Rs.5,00,000/-, in lump sum, because an observation made by the trial Court in its judgment dated 31st December, 2015, for lump sum payment of decretal amount was upheld by the Apex Court, which reads as under:- When the aforesaid observation made by the Family Court, for payment of lump sum decretal amount, has attained finality upto the Apex Court, the Court below did not commit any illegality while refusing fixation of installments. Moreover, it appears that the impugned order was recorded at the stage of execution proceedings, which, as per my humble view, does not fall in the definition of a decision or a decree rather it appears to be an interlocutory order. For appreciation of the matter, it would be appropriate to reproduce here Section 14(1) of the Azad Jammu and Kashmir Family Courts Act, 1993, which reads as under:-- "Appeals:

(1) Notwithstanding anything provided in any other law for the time being in force, a decision or a decree passed by a Family Court shall be appealable within thirty days to the Azad Jammu and Kashmir Shariat Court only." A bare reading of the aforesaid Section makes it crystal clear that only a decision or a decree passed by a Family Court is appealable to this Court. The aforesaid proposition came under consideration before the Apex Court in a case reported as Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510, wherein it was held as under:-- "A bare reading of the provisions of law provided for filing of appeal before the Shariat Court shows that it is only a decision or a decree which had been made appealable to the Shariat Court. The intention of the Legislature while enacting this law has been given in the preamble that the same was legislated for expeditious settlement and disposal of disputes relating to marriage and family affairs, therefore, to avoid protracted litigation no appeal or revision is provided against the interim orders." It was further held at page 543 of the precedent case as under:-- "Therefore, keeping in view the phraseology employed in use of words of 'decision' or 'decree' in section 14 of the Family Courts Act, 1993 in the light of dictionary meaning approved by the wisdom of the learned Judges while resolving the controversy in above referred authorities, we can safely arrive at a conclusion that interlocutory matters which do not finally dispose of the cases are not appealable before the Shariat Court." The aforesaid view was reiterated by the Apex Court in case reported as Firdos Bakhat v. Javed Khan through Attorney and another (2012 YLR 2231), wherein it was held as under:-- "We are unable to agree with the findings of the Shariat Court recorded on 24.3.2011 on the ground that the application filed by the appellant for allowing her to produce some other witnesses was accepted by the learned Family Court Kotli vide order dated 1.12.2010 and this order is an interlocutory order and not a final judgment, hence, appeal against the said order was not maintainable before the Shariat Court."

8. It would be pertinent to observe here that section 13 of The Family Courts Act, 1993, deals with 'Enforcement of decrees' and under subsection (5) of section 13 of the said Act, Family Court has been empowered to fix installments, which speaks as under:- "13(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems it." A bare reading of the aforesaid provision of law reveals that the word "may" has been used in it, which provides a discretionary power to the Family Court to fix installments, if it deems fit; therefore, the aforesaid subsection (5) of section 13 of the AJ&K Family Courts Act, 1993, is discretionary and not mandatory, thus, on the basis of the aforesaid provision of law, fixation of installments cannot be claimed as a matter of right, especially in presence of subsection (3) of section 13 of the Family Courts Act, which provides a procedure to execute decree involving payment of money. The aforesaid section 13(3) speaks as follows:- "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder". The Court below, through the impugned order dated 4th December, 2018, directed appellant/judgment-debtor to pay entire decretal amount Rs.5,00,000/-, in lump sum, and it is important to observe here that against such direction of a Family Court, for making payment of decretal amount, no provision of appeal or revision has been postulated under Family Courts Act, 1993, and allowing an appeal against such like orders at execution stage of a decree of Family Court, would tantamount to defeat the very purpose of expeditious settlement of family affairs. Therefore, in light of the supra provisions of the Family Courts Act, 1993, and the case law, it is abundantly clear that only a decision or a decree of Family Court is appealable before this Court and to avoid protracted litigation no appeal or revision has been provided against an interlocutory order.

9. The authorities cited by the learned Counsel for appellant/ judgment-debtor are distinguishable from the facts and circumstances of the instant case; therefore, do not render any help to his client.

10. The nutshell of above discussion is that the instant appeal does not lie against the impugned interlocutory order of the learned Judge Family Court, Muzaffarabad, dated 4th December, 2018; thus, finding no force, the same is hereby dismissed. No order as to the costs. ZC/3/(HC)AJK Appeal dismissed.