2020 PLP 1311 (CLC)
MUHAMMAD MASOOM — Petitioner Versus ADDITIONAL DISTRICT JUDGE and another — Respondent
| Citation | 2020 PLP 1311 (CLC) |
| Forum / Court | High Court (AJ&K) |
| Bench Members | N/A |
| Parties | MUHAMMAD MASOOM — Petitioner Versus ADDITIONAL DISTRICT JUDGE and another — Respondent |
| Primary Law | (b) Civil Procedure Code (V of 1908), (a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994) |
Q1: What are the key laws and sections cited in 2020 PLP 1311 (CLC)?
This judgment primarily cites: (b) Civil Procedure Code (V of 1908), (a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2020 PLP 1311 (CLC)?
The case was heard and decided by the High Court (AJ&K) bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2020 PLP 1311 (CLC) (MUHAMMAD MASOOM — Petitioner Versus ADDITIONAL DISTRICT JUDGE and another — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Sardar Aamir Jamil for Petitioner.
- Sardar Rehbaz Khan for Respondent No.2.
- The learned Advocate appearing for the petitioner reiterated the grounds taken in the writ petition and submitted that as per decree sought to be executed, the plaintiff/respondent No.2 was declared entitled to the dower Rs.44,445/- but the Court below illegally vide impugned order dated 09.11.2018, directed the petitioner to pay Rs.5,00,000/- in light of agreement dated 02.04.2014 as additional dower. The learned Advocate further argued that the Court below was not competent to enhance the dower amount suo motu. The learned Advocate in support of his submissions placed reliance on the following case law:
- The learned Advocate appearing for respondent No.2 argued that decree dated 19.11.2016 was passed on the basis of compromise between the parties and in light of agreement dated 02.04.2014, it was agreed between the parties that if the defendant without any reason divorces the plaintiff, he shall be bound to pay Rs.5,00,000/- as additional dower. The learned Advocate further contended that under Section 287 of the Mohammadan Law, dower can be increased even after marriage, therefore, the Court below rightly passed the impugned order.
Headnotes / Summary
S.13
Scope
Petitioner assailed order passed by executing court whereby he was ordered to pay, besides the decretal amount, an amount of Rs.5,00,000/- in light of an agreement between the parties
Contention of respondent was that the decree was passed on the basis of compromise between the parties and in the light of said agreement, it was agreed that if the petitioner, without any reason, would divorce the respondent, he would be bound to pay the said amount
Record revealed that the respondent was declared entitled to dower of Rs. 44,445/
Trial court had not declared that if the petitioner would divorce the respondent without any reason, she would be entitled to Rs.5,00,000/- in the light of said agreement
Executing Court had to execute the decree as it was and could not go beyond it
Executing court had travelled beyond the scope of the decree
Petition was accepted and the impugned order was set aside, in circumstances.
S.47
Questions to be determined by the Court executing decree
Scope
Executing court has to execute the decree as it is and cannot go beyond it.
Judgment & Decree
RAZA ALI KHAN, J.
Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is prayed for: "It is therefore, very humbly prayed that while accepting the instant writ petition the order passed by the learned Non-petitioner No.1 dated 09.11.2018 may kindly be declared null and void ab-initio, having no force of law and further may kindly be directed to the learned Executing Court/Non- petitioner No.1 to execute the decrees of dower and maintenance dated 19.11.2016 in accordance with law mentioned herein." Precise facts of the case are that respondent No.2 herein, filed application for execution of decrees dated 19.11.2016 before Additional District Judge/Judge Family Court Hajira on 31.08.2018. The learned Court below vide impugned order dated 09.11.2018, ordered the petitioner to pay, besides the decretal amount, Rs.5,00,000/- in light of agreement dated 02.04.2014 which is illegal, arbitrary and beyond the scope of Executing Court. The learned Advocate appearing for the petitioner reiterated the grounds taken in the writ petition and submitted that as per decree sought to be executed, the plaintiff/respondent No.2 was declared entitled to the dower Rs.44,445/- but the Court below illegally vide impugned order dated 09.11.2018, directed the petitioner to pay Rs.5,00,000/- in light of agreement dated 02.04.2014 as additional dower. The learned Advocate further argued that the Court below was not competent to enhance the dower amount suo motu. The learned Advocate in support of his submissions placed reliance on the following case law: 1. 2016 YLR 1836. 2. 2017 CLC Note 101, p.113 The learned Advocate appearing for respondent No.2 argued that decree dated 19.11.2016 was passed on the basis of compromise between the parties and in light of agreement dated 02.04.2014, it was agreed between the parties that if the defendant without any reason divorces the plaintiff, he shall be bound to pay Rs.5,00,000/- as additional dower. The learned Advocate further contended that under Section 287 of the Mohammadan Law, dower can be increased even after marriage, therefore, the Court below rightly passed the impugned order. I have heard the learned counsel for the parties and gone through the record of the case. It may be stated that the petitioner has challenged the impugned order only to the extent of Rs.5,00,000/- ordered by the Court below to pay in light of agreement dated 02.04.2014 as additional dower. A perusal of the record reveals that the learned Additional District Judge/Judge Family Court Hajira passed decree dated 19.11.2016 for payment of dower in the following terms: The above reproduced paragraph reveals that the plaintiff was declared entitled to dower Rs.44,445/- in shape of 2 1/2 tola gold ornaments. The Court below did not declared that if the defendant divorces the plaintiff without any reason, she shall also be entitled to Rs.5,00,000/- in light of agreement dated 02.04.2014. It is well settled principle of law that the Executing Court has to execute the decree as it is and cannot go beyond it. My this view lends support from case titled "Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur through Chairperson and 3 others v. Abdul Qayyum Qamar" [PLD 2003 SC (AJ&K) 14], wherein at page 18 of the judgment, it has been observed as under: "A decree passed by the Civil Court is either to be challenged by the opposite party or in case of its finality, is to be acted upon according to the terms and conditions laid down in it." Moreover, if for the sake of arguments, it is accepted that the agreement dated 02.04.2014 is correct and the parties are bound to implement the same even then it is to decide that the defendant divorced the plaintiff without any reason or he had any reason to divorce the plaintiff. In my considered view, the Court below while passing the impugned order travelled beyond the scope of Executing Court and decree dated 19.11.2016, sought to be executed which is not maintainable. In view of above, this writ petition stands accepted and the impugned order to the extent of payment of Rs.5,00,000/- as additional dower in light of agreement dated 2-4-2014 is set aside. The Court below shall pass fresh order on the application of respondent No.2. SA/78/HC(AJ&K) Petition accepted.