2003 PLP 2415 (YLR)

Muhammad Abbas for Petitioner Mian Fazal Rauf Respondents. Suit of minor children (respondents Nos.2 to 5) of the petitioner for recovery of maintenance allowance was decreed against him @ Rs.400 per month, each, vide judgment and decree of the learned Judge Family Court; Arifwala dated 30-6-2000. Respondents Nos.2 to 5 initiated execution proceedings of the said decree. The petitioner filed an objection petition whereupon he was directed to furnish surety bond for due performance of the decree. On 4-1-2002, neither he furnished the requisite surety bonds nor appeared in the executing Court, therefore, the learned executing Court was obliged to struck off his defence and also non-bailable warrants of his arrest with reference to the realisation of decretal amount, issued.

2. The instant Constitutional petition calls in question the aforesaid orders.

3. Learned counsel for the petitioner refers to section 5 of the Punjab Relief of Indebtedness Ordinance, 1960 (W. P. Ordinance XV of 1960) to contend that the petitioner being an agriculturist cannot be arrested or imprisoned in execution of a decree or money; that even under section 51 read with Order XXI, C.P.C., the learned executing Court was not competent to pass order of arrest without recording of evidence. Reliance has been placed upon Meeno Kharas v. Ali Khan PLD 1973 Note 133 at p.203 (Karachi) and A.K. Subranania Chettiar v. A Ponnuswami Chettiar AIR 1957 Madras 777.

3. On the other hand, learned counsel for respondents Nos.2 to 5 vehemently support the impugned order by submitting that the same has been passed strictly in accordance with law and facts.

4. I have duly considered the submissions, perused the material available on the file and gone through the judgments cited at the bar.

5. Awarding of discretionary relief under the Constitution mainly depends upon the conduct of a party. I have noticed that the impugned order dated 4-1-2002 was passed during executing proceedings of a decree on 30-6-2000 awarding the minors (respondents Nos.2 to 5) maintenance allowance @ Rs.400 per month each and the instant petition was filed on 18-3-2002 that the petitioner was directed to furnish a surety bond by the learned executing Court while entertaining his objection petition but he did not do so, rather he failed to appear on 4-1-2002. Even today, no explanation in this regard has been put forth by his learned counsel. It appears to be a deliberate defiance of the said order; that nothing has been brought on this file to establish that the petitioner is an agriculturist within the ambit of section 2(c)(i) of Ordinance XV of 1960. At this stage, learned counsel for the petitioner submits that this fact may be ascertained from the averments incorporated in the written statement submitted by the petitioner. I have also gone through the same but no such assertion finds mentioned therein. In para.5 of the plaint, it is stated:-- In reply to this para, petitioner has stated in his written statement:-- that even prior to passing of impugned order, petitioner remained in the habit of not appearing before the learned executing Court despite specific direction.

6. From the above, I am constrained to hold that conduct of the petitioner is not above board and he is playing hide and seek with the Court. Such a course cannot be allowed to be encouraged.

7. No case has been made out warranting indulgence of this Court under Article 199 of the Constitution. Resultantly, instant petition stands dismissed, leaving the parties to bear their own costs. S.M.A.H./Q-24/L Petition dismissed.