P L D 2016 Lahore 622 (PLP)

MIRZA VIQAS RAUF, J.--This single judgment shall decide the instant petition as well as Writ Petition No.15700 of 2014, as both these petitions are directed against the same orders and there is complete similarity and commonality of facts and law in both these petitions.

2. The petitioner namely Muhammad Ramzan is the grandfather of minors namely Ali Hamza and Amna Bibi, i.e. respondents Nos.1 and 2 whereas Muhammad Javed, who is petitioner in the connected petition is their father. The minors filed a suit for maintenance against their father before the learned Judge Family Court, Lahore which was consequently decreed ex-parte vide judgment dated 20th of November, 2012. The decree in the suit followed an execution petition. During the process of execution, Muhammad Javed (father) was arrested by the bailiff of the Court on 19th of September, 2013 and he was given show- cause notice for payment of 1/3rd of decretal amount out of total and surety bond to the extent of remaining decretal amount but on his failure, he was sent to civil prison. On 14th of March, 2014 second show-cause notice was issued to the judgment debtor and he was warned that in case of failure for payment of decretal amount, proceedings will be initiated as per law and the property belonging to his father will be attached. Ultimately on 2nd of April, 2014, the judgment debtor was sent back to civil prison till the satisfaction of the decree and the property belonging to the petitioner (grandfather) was ordered to be attached. The petitioner as well as judgment debtor filed two respective objection petitions against the said order, however, both were dismissed vide order dated 28th of April, 2014, hence these two petitions.

3. Mr. Rao M.I. Zafar Khan, Advocate representing the petitioners submitted that Muhammad Ramzan, being the grandfather was not a party in the suit, so the decree cannot be executed against him. He added that the provisions of Para 370 of Muhammadan Law have wrongly been invoked by the learned Judge Family Court. Learned counsel maintained that the learned Judge Family Court when once opted to launch the proceedings against the judgment- debtor under the provisions of The Land Revenue Act, 1967 then he cannot be kept in the civil prison more than thirty days as provided under Section 82 of the said Act. Learned counsel argued that in presence of execution proceedings against the actual judgment-debtor, no simultaneous proceedings can be initiated against the petitioner (grandfather).

4. Conversely, learned counsel for the respondents, while defending the impugned orders submitted that the proceedings were initiated in accordance with law and the grandfather is bound to satisfy the decree when his son has failed to discharge his liability. In order to strengthen his contentions, learned counsel referred Para 370 of The Muhammadan Law. Reliance has been placed on "Abdullah v. Jawaria Aslam and 2 others" (2004 YLR 616).

5. After having heard learned counsel for both the sides and perusing the record, I am of the view that matter in issue hinges upon three components which are as under:- i) Implication of Para 370 of Muhammadan Law by D.F. Mulla's; ii) Execution of a decree against a person, who is not a party in the suit; and iii) Modes of Execution by Family Court. Both the Courts below, while holding the petitioner, Muhammad Ramzan (grandfather) liable to pay the maintenance to minors have invoked Para 370 of Muhammadan Law. In order to properly evaluate the legality and validity of the judgments under challenge it is necessary to first examine the relevant provision. For the sake of convenience and reference Para 370 of principles of Muhammadan Law by D.F. Mulla's is reproduced below:- "

370. Maintenance of children and grandchildren.-- (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances." From the bare perusal of principles embodied in Para 370 ibid it is crystal clear that primarily father is bound to maintain his children. In the case of son until he or they attain the age of puberty and if there are daughter or daughters till their marriage. In case the father is poor and incapable of earning by his own labour it is the mother, if she is in easy circumstances, to maintain her children. The liability of grandfather starts when the father is poor and infirm and the mother is also not in a position to provide maintenance to her children but the liability of grandfather to maintain his grandchildren, is also dependent upon the fact that he is in easy circumstances. Thus in my humble view if the father and mother are alive, the grandfather cannot be held responsible for maintenance of his grandchildren unless it is first determined that he is in easy circumstances. In order to determine that grandfather is in a position to maintain his grandchildren it is incumbent upon the Family Court to first adjudicate and determine this fact which cannot be done unless he is a party to the suit, having a fair opportunity to explain his status and position. The judgment cited by the learned counsel for the respondents runs on entirely different facts. In the said case, the suit was filed against the paternal grandfather and the same was contested by him, so principles enunciated in the said judgment are not applicable to the present case. The Hon'ble Supreme Court of Pakistan in the case of "Ghulam Nabi v. Muhammad Asghar and 3 others" (PLD 1991 Supreme Court 543), while pondering upon a similar proposition held as under:- "Although leave was not granted to examine this point we permitted the learned counsel to advance the same so as to clarify the legal position. No doubt grandparents, if affluent, will be obliged to maintain grand children if they are destitute. But the command would issue in this behalf when there is no other nearer relation and/or more responsible in this behalf. Accordingly, when a specific proposition was put to the learned counsel in this behalf he could not advance his argument any further. The question posed was: whether, in presence of the father the grandparents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grandchildren as compared to the father's duty to maintain his own children learned counsel without hesitation admitted that the priority-wise it would be the duty of the father."

6. There is yet another important aspect which pertains to the execution of decree against a person who is not a party to the suit. Law is settled on this point that no decree can be executed against a person who is not a party to the proceedings. Even otherwise, the executing Court cannot go beyond the decree. Reliance in this respect can be placed on "Shafqat Ullah and 2 others v. Land Acquisition Collector (D.C.), Haripur and 2 others" (2006 CLC 1555), "Irshad Masih and others v. Emmanuel Masih and others" (2014 SCMR 1481).

7. While adverting to the powers of the Family Court to execute its own decree, it is observed that Section 13 of The West Pakistan Family Courts Act, 1964 prescribes the modes which are to be adopted by the Family Court for execution of its own decree, the same is reproduced below:-

13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register. (2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment [or] the delivery of property, as the case may be, in the aforesaid register. (3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court [not exceeding thirty days], 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. (4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct. (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 fit. It is manifest from the above that the Family Court is vested with the powers to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue (including selling the immovable property of the judgment debtor).

8. It is an admitted position that the judgment debtor (father) was arrested in pursuance to the warrant for execution of the decree in question and he was sent to civil imprisonment where he remained for one year. The decree passed by the Family Court will remain in field to the extent of actual judgment-debtor even after suffering the said civil prison unless it is satisfied as per modes provided under Section 13 of the Act, ibid. The process of execution cannot shift towards the grandfather only on account of mere fact that judgment-debtor has failed to discharge his liability under the decree.

9. The provisions of The Civil Procedure Code (V of 1908) except Sections 10 and 11 though have been ousted from the purview of Family Courts Act, 1964 by way of Section 17 of the said Act, however, Family Court cannot merely sit as a spectator for the purpose of executing its own decree. The Family Court may follow the procedure as contained in The Code of Civil Procedure (V of 1908) for the execution of the decree. Order XXI, Rule 30 of The Code of Civil Procedure (V of 1908) provides mechanism for execution of a decree for specific moveable property and the Family Court can adopt the procedure provided in The Civil Procedure Code (V of 1908) for execution of its decree irrespective of the provision contained in Section 13 of The Family Courts Act, 1964. Reference can be made to "Muhammad Farid Khan v. The Civil Judge-I, Abbottabad and 3 others" (1989 CLC 1630).

10. In response to the contention of the learned counsel for the petitioner that judgment-debtor cannot be kept in civil prison for more than thirty days, it is observed that Section 55 of The Civil Procedure Code (V of 1908) provides the answer of the same which reads as under:- "55.(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year: Provided, firstly. that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise: Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found: Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest: Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him. (2) The [Provincial Government] may, by notification in the [official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the [Provincial Government] in this behalf. [(3) A judgment-debtor detained in prison under sub-section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the deacree. but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.] It is evident from the above that a judgment-debtor can be sent to civil prison for one year thus order of the learned Judge Family Court to this extent is un-exceptional.

11. The above discussion leads me to an irresistible conclusion that impugned order dated 28th of April, 2014 to the extent of attachment of property of the petitioner (grandfather) is un-warranted by law whereas impugned order to the extent of petitioner (judgment-debtor) calls for no interference. This being so, the impugned order dated 28th of April, 2014 is declared illegal and unlawful to the extent of directing the attachment of property of grandfather whereas the same is maintained to the extent of judgment-debtor (father). Consequently, the instant petition is allowed whereas the connected petition No.15700/2014 is dismissed with no order as to costs. ZC/M-96/L Order accordingly.