2025 PLP 1768 (YLR)

Muhammad Sajid Mehmood Sethi, J.

Through instant petition, petitioner has sought direction from this Court for the respondents to restrain from recovering the decretal amount of maintenance allowance of respondent No.5 from petitioner or from attaching the immovable property of petitioner being Special Attorney of the principal.

2. Brief facts necessary for adjudication of instant petition are that respondent No.5 filed application for recovery of maintenance allowance against petitioner's brother, namely Abdul Razzaq son of Ghulam Nabi (petitioner was special attorney of Abdul Razzaq), which was allowed vide order dated 19.02.2004, passed by respondent No.4 / Nazim, Union Council, Bhagwal, Tehsil Kharian, District Gujrat. The recovery proceedings against said Abdul Razzaq are pending before the Revenue hierarchy for attachment of immovable property, however, respondents are adamant to initiate recovery proceedings against the petitioner being Special Attorney by way of attachment of his immovable property. Hence, instant petition.

3. Learned counsel for petitioner contends that petitioner is only the Special Attorney of his brother and acted only as Special Attorney on his behalf, but he is neither the judgment-debtor nor even he stood as surety to the decretal amount. He argues that respondents have illegally and unlawfully started adopting coercive measures against the petitioner instead of the original judgment-debtor. He maintains that the impugned actions of respondents are unsustainable in the eyes of law.

4. Contrarily, learned counsel for respondent No.5 and learned Law Officers have vehemently opposed the above submissions and prayed for dismissal of instant petition. In support, he has relied upon order dated 13.11.2018, passed by another learned Bench of this Court in C.R. No.3831 of 2016 titled Abdul Razzaq through Special Attorney Abdul Haq v. Province of the Punjab and others.

5. Arguments heard. Available record perused.

6. The record reveals that the matter regarding the recovery of maintenance allowance for respondent No.5 dates back to the year 2003, when she filed an application before the Arbitration Council. The application was allowed vide order dated 19.02.2004, which was subsequently challenged before the District Officer (Revenue), Gujrat by filing a revision petition, which was dismissed vide order dated 13.12.2004. Dissatisfied with the outcome, a writ petition was filed before this Court, which was dismissed for non-prosecution vide order dated 03.10.2005. A civil miscellaneous application for recalling the said dismissal order was also dismissed. Respondent No.5's husband then approached the Hon'ble Supreme Court, but without success. Later on, after a lapse of more than four years, he instituted a suit for declaration, challenging the original order dated 19.02.2004, without assailing any of the subsequent orders and obtained decree; however, the same was reversed by learned lower Appellate Court vide judgment and decree dated 20.06.2016. The said Abdul Razzaq, through his Special Attorney (the present petitioner), challenged the appellate decision by filing a revision petition, which was dismissed by this Court vide order dated 13.11.2018 with costs of Rs.100,000/-. In execution of the order dated 19.02.2004, passed by Respondent No.4 which has attained finality-proceedings have been initiated by the revenue authorities against the petitioner for recovery of the decreed maintenance allowance. The primary question for determination before this Court is whether the petitioner, acting as the Special Attorney of Abdul Khaliq, is legally bound to satisfy the decree, or whether it is Abdul Khaliq himself the husband of Respondent No.5 and the judgment-debtor-who is solely liable to satisfy the same.

7. The liability of a Special Attorney in execution proceedings must be determined with reference to the specific contents and scope of the Power of Attorney executed in his favor. The tenor of the Special Power of Attorney executed in petitioner's favour is as under: SPECIAL POWER OF ATTORNEY Know all Men by these Presents That I, Abdul Razzaq son of Ghulam Nabi, (BCDL 6143641) of 7215-122 A Street, Surrey, british columbia, canada, Canada, V3W 3T2, for diverse good causes and considerations me thereunto moving, HAVE nominated, constituted and appointed, and by these Presents DO NOMINATE, CONSTITUTE and APPOINT my brother, Abdul Haq son of Ghulam Nabi, of Village Bhagwal, Tehsil Kharian, District Gujrat, Pakistan My true and lawful Attorney to do the following, namely: To institute, defend, reply, appeal or compromise any action or court proceedings commenced by Fazilat Bibi daughter of Ghulam Haider. To appear before all or any judges, Magistrates or other Officer of the Courts of Law or Equity, and then and there to sue, plead, answer, defend and reply in all matters and causes concerning the above said matter. To obtain any information in respect of the said land from any government departments or from anyone else. THE AUTHORITY GIVEN hereby to my said Attorney shall continue notwithstanding any such mental infirmity to which I may hereafter become subject. IN WITNESS WHEREOF I have signed these Presents at Surrey, in the Province of British Columbia, on the 28 day of April 2004. It is a well-settled principle of law that a power of attorney must be construed strictly, and only those acts, duties, and obligations that are expressly conferred upon the attorney may be lawfully performed by him.1 This principle ensures that no implied or assumed obligation can be fastened upon an agent beyond what has been clearly and expressly delegated. As held in Muhammad Aslam v. Ayyan Ghazzanfar and 2 others (PLD 2012 Lahore 392) and Muhammad Nawazish Ali v. Family Judge and others (2021 CLC 1841 Lahore), where a Power of Attorney is silent with respect to payment obligations and the attorney has merely acted in a procedural or representational capacity, no independent liability can be imposed upon him in execution proceedings. It is axiomatic that an attorney functions as an agent, not as a substitute for the principal. In the absence of express or implied authority to bind him personally, the general rule under Section 230 of the Contract Act, 1872 applies, whereby an agent is not personally liable for acts performed on behalf of the principal. Reliance can be placed upon Muhammad Mohsin Fawad v. Hina Tayyaba Khalil and another (2018 YLR 2199). The legal Maxim 'Qui facit per alium facit per se' (he who acts through another does the act himself) reinforces the principle that it is the principal, not the agent, who remains responsible for obligations arising from such representation. In the present case, the petitioner, acting as a Special Attorney, neither made any substantive commitment to satisfy the decree nor exceeded the scope of authority conferred by the Power of Attorney; therefore, no coercive action can lawfully be directed against him. Doing so would amount to an excess of jurisdiction and a violation of the fundamental principle that delegated authority does not create personal liability unless expressly undertaken. Accordingly, the impugned actions of the respondents in proceedings against the petitioner__who is not the judgment__debtor-are ultra vires, without lawful authority, and contrary to settled legal norms. The decree remains enforceable solely against the judgment-debtor. If the judgment-debtor is residing abroad or is otherwise avoiding execution, the proper legal recourse lies under section 13 (3) of the West Pakistan Family Courts Act, 1964, which permits the recovery of the decretal amount as arrears of land revenue. Reliance is placed upon Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128) and Sawera Ikram v. Amir Naveed (PLD 2022 Lahore 600).

8. It may initially appear that a contrary view was taken by the Hon'ble Supreme Court of Pakistan in Muhammad Pervez v. Mst. Nabila Yasmeen and others (2004 SCMR 1352). However, a careful examination reveals that the facts of that case are clearly distinguishable. In the said case, the petitioner had acted as the attorney of the judgment debtor throughout the trial and continued to do so during execution proceedings. At one stage, he undertook to produce the judgment debtor before the executing court on the next date. However, he failed to do so and also did not appear before the court, prompting the issuance warrants for his arrest. Subsequently, the petitioner filed an application seeking cancellation of the arrest warrants, contending that the power of attorney in his favor had been revoked by the judgment debtor. The executing court dismissed the application, and his appeal was also rejected on the ground that no appeal laid against such an order. His constitutional petition also failed, and ultimately, leave to appeal was refused by the Hon'ble Supreme Court. It is evident that the question before the Apex Court was confined solely to the cancellation of arrest warrants issued against an attorney who had defaulted on a procedural undertaking. The Hon'ble Court did not address-nor decide any issue relating to the substantive liability of an attorney for the satisfaction of a decree. Similarly, the Hon'ble Court did not hold that an attorney can be proceeded against in his personal capacity for enforcement of a decree passed against the principal. With utmost respect, it is pertinent to note that an order granting or refusing leave to appeal by the Hon'ble Supreme Court neither constitutes a judgment nor carries binding precedent. Therefore, such an order is not necessarily and imperatively required to be followed.2 In the case of Naeem Iqbal and 2 others v. Noreen Saleem and others (PLD 2009 SC 757), the brother and attorney for the judgment-debtor agreed to make the payment of decree of dowry articles in six equal installments to the decree-holder. Similarly, in the case reported as Farooq Ahmed and another v. Additional District Judge, Samundari, District Faisalabad and 5 others (PLJ 2015 Lahore 774), the petitioners before the Court were the attorney and the surety, who paid a certain amount, as a result of which the judgment-debtor was released. In these circumstances, the Court observed that the responsibility of the attorney and surety with the judgment-debtor is coextensive with that of the judgment-debtor, and that the execution of a decree can be carried out by following the procedure prescribed for the recovery of arrears of land revenue.

9. In view of the above, respondents are restrained from recovering the decretal amount of maintenance allowance of respondent No.5 from the petitioner, or from attaching the petitioner's immovable property, merely on account of his status as the Special Attorney of the principal. It is equally disconcerting to note that, despite the order passed in favour of respondent No.5 as far back as 2004, not a single penny has been paid to her towards the decreed maintenance allowance. Given this prolonged and unjustified denial of her lawful entitlement, the respondent-authorities are directed to initiate and conclude recovery proceedings against Abdul Khaliq, the judgment-debtor, at the earliest__preferably within a period of three months from the date of receipt of this judgment-under intimation to this Court through the Deputy Registrar (Judicial).

10. Resultantly, instant petition is allowed in the above terms. UN/A-43/L Petition allowed.