13/12/2017
Family cases
* Decree passed by the family court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order---Executing court had to follow the procedure contained in civil Procedure Code, 1908---decree for restitution of conjugal rights would become inapplicable of ex*****on if wife had proved non-payment of dower on demand---Only attachment of property of wife could be made in ex*****on of a decree for restitution of conjugal rights---Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights---Executing court had committed an error by giving direction for personal appearance of wife in ex*****on of decree for restitution of conjugal rights---Impugned order passed by the Executing court for personal appearance of wife was set aside---Constitutional petition was accepted in circumstances. 2016 MLD 1430 Mst. SAIMA TABBASAM Versus Syed SHER SHAH
* Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached---Contention of grandfather was that he was not party to the suit and decree could not be executed against him---Validity---Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children---Such liability of grandfather was dependent upon the fact that he was in easy circumstances---If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances---family court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position---No decree could be executed against a person who was not a party to the proceedings---Executing court could not go beyond the decree ---decree passed by the family court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied---Process of ex*****on of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree --family court could adopt the procedure provided in civil Procedure Code, 1908 for ex*****on of its decree ---Judgment-debtor could be sent to civil prison for one year--Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful---Constitutional petition was allowed in circumstances. PLD 2016 Lah. 622 MUHAMMAD RAMZAN Versus ALI HAMZA
* Provisions of civil Procedure Code, 1908 except Ss. 10 & 11 though had been ousted from the purview of family court s Act, 1964, however, family court might follow the procedure as contained in civil Procedure Code, 1908 for the ex*****on of decree . PLD 2016 Lah. 622 MUHAMMAD RAMZAN Versus ALI HAMZA
* Family court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined---Wife-plaintiff did not challenge the said decree and filed ex*****on petition wherein husband-defendant moved an application for setting aside ex parte judgment and decree which was accepted---family court finally decree d the suit only to the extent of maintenance allowance for the wife and minor while rest of the claim in the suit was declined---Validity---Amount of Rs.5,000/- per month in case of desertion was fixed as maintenance in the Nikah Nama with mutual consent of the parties which should have been given due consideration---Nuptial disputes between the parties were consequence of unemployment of husband---No justification existed for reducing the quantum of maintenance from Rs. 5,000/- to Rs. 1,500/---Divorce certificate being a public document had presumption of correctness---Wife had been rightly held entitled for maintenance allowance beginning from July 2005 till 23-11-2007 and for the period of iddat---Wife had not challenged her portion of claim with regard to dower and gold ornaments which was declined in the ex parte decree by the family court ---Wife had acquiesced the said decision by not assailing the same through appeal---Such conduct of wife would amount to relinquishment of said part of claim---Wife would be debarred from subsequently agitating the same---Wife was having an option to file appeal but she failed to avail the same---Counter right accrued in favour of adverse party could not be discarded merely that ex parte judgment was subsequently set aside---Ex parte judgment would roll back to the extent of husband-defendant's claim---Principle of res judicata was applicable in circumstances---Wife-plaintiff could not re-agitate the claim which had already been decided finally---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance---Findings of both the court s below with regard to quantum of maintenance were in contravention of stipulation contained in the Nikah Nama---Wife was held entitled to maintenance @ Rs.5,000/- per month from July, 2005 to 23-11-2007---Constitutional petition was disposed of in circumstances. 2016 CLC 313 Mst. RUKHSANA KANWAL Versus ABDUL JABBAR
* Jurisdiction of Federal Shariat court was excluded in matters pertaining to Muslim Personal law---Order XXI, Rr.32 & 33, C.P.C. (which provided a mechanism to the family court for ex*****on of its judgment/decree ) were not only procedural law but also fell within the category of Muslim Personal law, thus they were excluded from the jurisdiction conferred on the Federal Shariat court ---Shariat petition was dismissed accordingly. PLD 2016 FSC 4 NADEEM SIDDIQUI Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad
* Once the gift/hiba itself was declared to be unlawful, any further transaction on the basis of the said gift would only be a nullity in the eye of law for that the wife i.e. donee of the gift did not have legal title to the house to sell the same to the petitioner---Both gift as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree for maintenance was not satisfied---decree was for the maintenance of the daughter, but unfortunately, the father in sheer disregard of his parental obligation had indulged in making unlawful transactions---court while exercising parental jurisdiction could not just sit and be a spectator in such unholy and unlawful conduct of the father---Section 13(3) of the West Pakistan family court s Act, 1964, empowered the family court 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 defaulter)---Order of attachment of the house of the father passed by the family court in ex*****on of the decree passed by it, was in accordance with law---Petition for leave to appeal was dismissed accordingly and leave was refused. 2015 SCMR 128 AMJAD IQBAL Versus Mst. NIDA SOHAIL
* Technical trappings of ex*****on of decree provided in the civil Procedure Code, 1908, were excluded from application before the family court in ex*****on of a decree for maintenance. 2015 SCMR 128 AMJAD IQBAL Versus Mst. NIDA SOHAIL
* Section 17 of West Pakistan family court s Act, 1964 excluded the application of civil Procedure Code, 1908 except Ss. 10 & 11 of the same---Procedure set out in O. XXI, C.P.C. for ex*****on of civil decree need not to be followed by a family court ---family court had been vested with the discretion as to how it would order for recovery of a money decree passed by it---Such discretion had to be exercised at the time of passing a decree ---Money decree was to be recovered as arrears of land revenue only if court had so directed at the time of passing of the same---family court might follow any procedure for implementation of its money decree including the arrest of judgment-debtor and attachment of his property if such direction had not been made by the same---Surety was as much bound by his undertaking as was the judgment-debtor---Both surety and judgment-debtor were collectively and severally liable to make payment to the decree -holder---Surety would not be absolved of his liability if judgment-debtor was sent behind the bars---Surety was to be conscious of his liabilities and he could not be allowed to evade from the same---Constitutional petition was dismissed in limine. 2015 YLR 316 MUHAMMAD AMIN Versus JUDGE, FAMILY COURT, SAHIWAL
* Agreement to sell dated 8-8-2007 was executed by husband in favour of respondent; suit for specific performance was filed on 3-1-2008, which was dismissed by the civil court , however, the appeal filed by respondent was accepted vide ex parte judgment and decree dated 28-12-2008---Agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of respondent (objector) were all subsequent events to the decree of maintenance allowance passed in favour of the wife and minors; respondents (husband and objector) being close relatives in connivance with each other had tried to frustrate the decree of maintenance allowance passed in favour of the wife and minors---Any agreement to sell executed by the respondent (husband) regarding his property after the decree passed against him was illegal and unlawful and did not create any right in favour of the subsequent purchaser (objector)---Sale-deed executed by husband was result of fraud and connivance which could not be allowed to be made a tool to frustrate the judgment and decree of maintenance allowance passed in favour of the wife and minors---Appellate court had failed to apply its judicial mind while passing the judgment and decree ---Constitutional petition was allowed in circumstances. 2015 CLC 667 SAIMA PERVEEN Versus NAEEM AHMAD NASIR
* Defendant was brought before court in ex*****on petition for maintenance allowance while he was under arrest in civil prison for failure to pay decretal amount in ex*****on petition for dowry articles---Executing court should have made speaking orders in ex*****on petition for maintenance allowance as defendant had been brought before the court in both ex*****on petitions which had been in progress simultaneously---Omission of the executing court to pass a speaking order could not prejudice the rights of defendant who could not be vexed twice by sending to civil prison for more than one year which he had already served---Petition was accepted---Order of re-arrest of defendant was set aside. 2014 MLD 1809 SHAFQAT IBRAR Versus JUDGE FAMILY COURT
* After the compromise, the husband/judgment-debtor had not taken any ground that any amount towards the satisfaction of the decree was paid privately to the wife---Withdrawal of first ex*****on petition on the basis of compromise was not absolute but was on the basis of settlement arrived at that time, and till the satisfaction of a decree , it could be executed within the given aggregate period of six years, from the date of the decree ---family court could exercise its own powers to prevent the course of justice being deflected from its path---family court had to regulate its own proceedings in accordance with provisions of the West Pakistan family court s Act, 1964 and in doing so, it had to proceed on the premise that every procedure was permissible unless a clear prohibition for the same was found in law, meaning thereby that the family court could exercise its own powers but was not debarred to follow the principles of the civil Procedure Code, 1908 coupled with the facts of a case---West Pakistan family court s Act, 1964 and the Rules made thereunder had not expressly prohibited the filing of a second ex*****on petition especially in the circumstances when there was nothing on record that after the compromise and withdrawal of the first ex*****on petition, any payment had been made or efforts were completed for satisfying the decree privately---Constitutional petition was dismissed. PLD 2012 Pesh. 159 IFTIKHAR KHAN Versus Mst. AMINA BIBI
* Wife received only part of the gold ornaments as per the compromise verdict given by the arbitrators and it was specifically provided therein that she could demand the remaining tolas of gold at any time from the husband---Arbitration agreement and verdict nowhere stated that the wife could not agitate her grievance again in case of failure, neglect or refusal of the husband to act in terms of the said agreement---Object of the arbitration was to bring about a compromise between the parties and not to deprive the wife of her lawful right which was granted to her by the family court ---Wife had no choice but to knock at the door of the family court ---decree passed against the husband was still intact and executable---Compromise could not be construed as rendering the decree itself ineffective and the wife had never relinquished her entire claim against the husband---No legal impediment existed to file a second ex*****on petition in case of withdrawal of ex*****on petition from the Executing court if the decree had not been satisfied---Constitutional petition was dismissed. PLD 2012 Pesh. 156 Hafiz MUHAMMAD YOUNIS Versus Mst. SHAHEEN QURESHI
* Suit for recovery of past maintenance by wife and husband's prayer in written statement for restoration of conjugal rights decree d by family court by one and the same judgment---Applications by both parties for ex*****on of their respective part of decree ---Order of family court attaching decree d allowance till satisfaction of decree of conjugal rights by wife---Recalling of such attachment order by family court and directing husband to pay decree d allowance as same could not be attached to compel wife to obey decree of conjugal rights passed in his favour---Dismissal of husband's appeal by Appellate court filed against recall order---Validity---court in interest of justice could recall or modify a patently illegal and unlawful order---According to O.XXI, R.33, C.P.C., Executing court while executing decree for conjugal rights could not attach decree passed for such allowance in favour of wife---Husband would be legally bound to maintain his wife, if her refusal to live with him was justified by reasonable cause---Wife in present case, had been found to be entitled to past maintenance as husband had contracted second marriage, thus, she (first wife) was legally justified to live apart and he was bound to pay her maintenance---family court had no jurisdiction to pass such attachment order and had power to vary, modify and rescind same---High court dismissed constitutional petition in circumstances. 2012 CLC 160 MISKEEN AHMED Versus Mst. SAJIDA
* Departure from express provisions of S.13(3) of the West Pakistan family court s Act, 1964 would violate the law and the procedure prescribed for ex*****on of decree in the said provision was to be resorted to---Provisions of the civil Procedure Code, 1908, although were excluded by S.17 of the Act, but general principles thereunder could be invoked for due administration of justice where no procedure was provided in the West Pakistan family court s Act, 1964---family court was empowered to direct recovery of decree amount from the arrears of land revenue and Chap.VIII of the West Pakistan Land Revenue Act, 1967 provided procedure for such recovery, and therefore, when a specific produce had been provided for enforcement of the decree , resort to general provisions of the civil Procedure Code, 1908 would not be permissible---Judgment-debtor was bound to satisfy the decree whether himself or through his attorney and the basic liability was still upon the judgment-debtor and not the attorney---Executing court , in the present case, had attached a car belonging to the defendant and the decree holders had placed on record "Fard Taleeqa" mentioning 8 items of movable properties of the judgment-debtor/ defendant within Pakistan---Deed of power of attorney was to be strictly construed and a power which had not been assigned in specific terms could not be presumed to have been given by the principal to the attorney---Attorney was given to the petitioner (grandfather) to defend the suit on behalf of the defendant and never provided for any liability to the effect that in case of any possible decree against the defendant/ judgment debtor, the same could equally be executable against the attorney---Attorney in his independent capacity could not be booked for satisfaction of the decree which was never granted against him---High court set aside impugned orders of the Executing court and directed the Executing court to proceed according to S.13(3) of the West Pakistan family court s Act, 1964 and directed the revenue authorities to recover decretal amount as arrears of land revenue---Constitutional petition was allowed, accordingly. PLD 2012 Lah. 392 MUHAMMAD ASLAM Versus AYYAN GHAZANFFAR
* Suit by wife for recovery of Rs. 2,00,000 as compensation (in case of divorce) on basis of agreement and promissory note---ex*****on of agreement between parties and promissory note in favour of plaintiff at time of marriage making defendant liable to pay such compensation in case of divorcing plaintiff or contracting second marriage without her permission---Filing of such suit after defendant divorced the plaintiff---Reference of dispute to Referee by family court at request of parties---Filing of Salsi Faisla by Referee in favour of plaintiff---decree passed by family court upheld by Appellate court ---Validity---court lacking jurisdiction under law could not be vested with same with consent of parties---Neither family court had jurisdiction nor consent of parties could vest the court with jurisdiction to try such suit, which could only be tried by civil court of ordinary jurisdiction---High court set aside impugned judgments/decree s in circumstances. 2012 MLD 14 AMJAD ALI Versus Mst. SAMARA YASMEEN
* Petitioner was serving in armed forces and family court attached salary of petitioner during ex*****on of decree passed against him---Plea raised by petitioner was that under S.171 of Pakistan Army Act, 1952, his salary could not be attached by direction of any civil or revenue court in satisfaction of any decree ---Validity---Salary of person serving Armed Forces was saved from seizure or attachment but that saving would come into play in case where direction was issued by a civil court , revenue court or revenue officer in satisfaction of a decree ---Such saving clause did not cover decree passed and direction issued by family court ---Salary and allowances of officer of Armed Forces, were not saved under S.488, Cr.P.C. and S.65 of Pakistan Army Act, 1952, in matter that related to maintenance of wife or child of such officer---Exemptions to salaries etc. of person serving Armed Forces of Pakistan as postulated under S.171 of Pakistna Army Act, 1952, was not available in case of decree passed by family court ---High court declined to interfere in order or attachment of salary passed by family court against petitioner---Petition was dismissed in circumstances. PLD 2011 Lah. 334 NAJEEB AHMAD ABBASI Versus M.A.G.
* Suit for recovery of gold ornaments and personal property and belongings of wife---Plaintiff sought decree to the effect that she had become owner of the house, car, gold ornaments and half of the landed property of the defendant on the basis of Iqrarnama signed by defendant---Trial court ordered plaintiff to pay the court fee holding that matter involved civil liability, so plaintiff's claim could not be entertained---Appellate court setting aside the order of Trial court remanded the case with direction to examine the parties under O.X, R.2, C.P.C.--- As per Schedule to the West Pakistan family court s Act, 1964, matters relating to dower, maintenance allowance, dowry as well as the personal property and belongings of wife fell within the jurisdiction of Judge, West Pakistan family court s Act, 1964---Though the conditions of the Iqrarnama were not mentioned in the Nikahnama yet defendant husband had admitted to the ex*****on of the Iqrarnama in question, albeit, under certain compulsions---Matter involved question of fact to be proved or disproved by the parties through the evidence---court s below did not exercise the jurisdiction vested in them in accordance with law---Constitutional petition was allowed---Impugned orders were set aside---Case was remanded to Trial court with direction to frame the issues and record evidence and dispose of the matter in accordance with law. PLD 2011 Lah. 225 Mst. HUMAIRA NOREEN Versus ADDITIONAL DISTRICT JUDGE
* Provision of O.XXI, R.29, C.P.C. was meant to satisfy cross decree s passed under the ordinary law by civil court s---In the present case, suit was pending before the civil Judge against the decree -holder (minor), could not be said to be a suit pending before the same court which had passed the decree ---Constitutional petition was dismissed by High court in limine. 2011 CLC 780 MAJID ASGHAR Versus FAIZA RIAZ
* Ex*****on decree had been passed by family court , however; the said suit pending before civil Judge against decree -holder, could not be said to be a suit pending before the same court which had passed the decree ---decree for maintenance allowance had been passed in favour of minor and ex*****on of said decree in the remote future would be of no avail to him if he had grown up, as an uneducated, under-nourished and ill-groomed person, however; unless decided otherwise, the presumption was that the minor was the legitimate child of the petitioner---Petitioner had no claim to be adjusted against the maintenance allowance decree d in favour of the minor---Constitutional petition' was dismissed by High court in limine. 2011 CLC 780 MAJID ASGHAR Versus FAIZA RIAZ
* Husband was arrested in ex*****on of decree passed by family court for recovery of maintenance allowance and was sent to civil prison, who was released on his undertaking to pay the amount through instalments---After release from civil prison, husband requested family court to defer recovery of maintenance for sometime, which he would pay as and when he was able to make the payment but the request was disallowed by executing court ----Plea raised by husband was that he could not have been arrested for default in ex*****on of decree as protection under the provisions of West Pakistan Relief of Indebtedness Ordinance, 1960, was available to him---Validity---Plea of husband with reference to Ss.5 & 11 of West Pakistan Relief of Indebtedness Ordinance, 1960, presupposed that husband was a "debtor" under S.2 of the Ordinance, whereas such presumption was not in-built or irrebuttable, nor was it based on admitted facts---Position of husband as "Debtor' depended upon determination of question of fact---Such point was not even raised before the executing court , which if raised the court could have dealt with and decided same in accordance with law---Such factual inquiry could not be undertaken in the proceedings of constitutional petition---High court declined to interfere with the order passed by executing court ---Constitutional petition was dismissed in circumstances. 2008 CLC 775 GHULAM RASOOL Versus SENIOR CIVIL JUDGE WITH THE POWERS OF JUDGE FAMILY COURT, FAISALABAD
* Plaintiff/respondent filed suit for maintenance allowance against defendant/petitioner which was decree d by family court and appeal there against was dismissed by lower Appellate court ---Plaintiff, thereafter, filed ex*****on proceedings before executing court and defendant filed objection petition which was dismissed by the court and bailable warrants were issued against defendant---Defendant who had been released from judicial lock-up on undertaking to pay decretal amount in instalments, failed to honour his undertaking and filed an application under Order XXI, rule 29 read with S.151, C.P.C. for stay of proceedings which was dismissed by court and he was again sent to judicial lock-up---Defendant's father filed habeas corpus petition before High court under S.491 for production before the court to be dealt with in accordance with law---Defendant contended that order passed by executing court committing him to judicial lock up was not an order in the eye of law as prerequisites of S.51, C.P.C. were not complied with and that as aforesaid order did not specify period of detention of defendant, there was no lawful justification for his further detention---Validity---West Pakistan family court s Act, 1964 had provided a special procedure for decision of family matters and C.P.C. and Qanun-e-Shahadat, 1984 were not applicable to a case before family court ---Reason for exclusion of provisions of C.P.C. and Qanun-e-Shahadat, 1984 was to provide to a spouse easy access to justice---family court s were special Tribunals which regulated and supervised the rights of parties under provisions of West Pakistan family court s Act, 1964---ex*****on of money decree s in family matters was governed by S.13(3) of West Pakistan family court s Act, 1964 whereby executing court could summon judgment-debtor to pay maintenance allowance and on his refusal to pay the same, the court was to proceed and adopt coercive measures---Defendant through petition filed under 5.491, Cr.P.C. was not to challenge proceedings of Executing court which were regulated by West Pakistan family court s Act, 1964 wherein special procedure had been provided for recovery of decretal amount which included adopting of coercive measures against judgment-debtor---Petition was dismissed. 2007 CLC 128 MUHAMMAD ISMAIL Versus SUPERINTENDENT, DISTRICT JAIL, SHEIKHUPURA
* Decree for maintenance of wife and children with effect from 1992, passed on 15-11-1995- -ex*****on of decree failed and petitioner (husband) was sent to civil prison and later was released on bail but further opportunity given to him proved futile and bail was cancelled and he was again arrested---Petitioner approached the High court in its Constitutional jurisdiction and he was allowed interim bail subject to furnishing bail bond in the sum of Rs.50.000 with a surety; order of granting he was, however, in the background of the compromise made before the High court that it released on bail he shall be discharging his liability under tile decree --Petitioner informed the High court that he will be getting his G.P. Fund shortly which he shall be depositing before the executing court and further that he shall be paying his debts under the decree in instalments as he was not in a position to pay the smite in lump sum--Held rewarding his prayer that he decretal amount be received through instalments. He may repeat the prayer before the executing court , who may review the same pragmatically and keeping in view the economic condition of the petitioner--Petitioner, having undertaken to pay the gratuity amount which he would receive within a period of six weeks from the date of present judgment it was considered to he proper to extend his interns; bail until 14th of December 2002.--If the Petitioner made part payment, he would earn the sympathy of the executing court for extending to him such concession for discharging his liabilities as are proper but if he failed, that he would be at the mercy of the executing court as the present order of the High court extending his interim bail shall abate---Constitutional petition was disposed of accordingly. PLD 2003 Lah. 51 NISAR AHMAD Versus JUDGE FAMILY COURT RAWALPINDI
* Wife of the petitioner/ respondent had approached Chairman, Union Council/respondent with application for maintenance on 9-1-1993-Two notices had been sent to the petitioner by the Chairman, Union Council which had returned undelivered and he had observed in the order sheet that neither of the notices had been received by the petitioner---Petitioner, thereafter was proceeded ex parte and after recording the evidence of the wife of the petitioner, the Chairman, Union Council ordered the petitioner to pay Rs. 84, 000 as past maintenance for seven years to his wife and minor daughter---Wife of the petitioner had filed the ex*****on petition 6-1 /2 years after the order of the Chairman, Union Council while the period of limitation was clearly six years---If first application for ex*****on had been filed within three years, the ex*****on proceedings were patently time-barred---Petitioner had filed a revision petition when he received notice of the ex*****on proceedings and the Deputy Commissioner without taking into consideration contentions of the petitioner that he had been condemned unheard had proceeded to dismiss his revision petition as being time-barred and also dismissed the review petition on merits---Order of the Chairman, Union Council suffered from three legal lacunas; firstly, Chairman Union Council had not effected service on the petitioner through citation published in some daily of the area where the petitioner resided as the notices had returned unserved and as required under the Muslim family Laws Ordinance, 1961; secondly the Chairman had awarded maintenance for 7 years to the petitioner while under Art. 120 of the Limitation Act, 1908, maximum period for which maintenance could be awarded was 6 years and thirdly, application of the wife of the petitioner for ex*****on of decree of Chairman, Union Council had been filed after 6-1/2 years, and therefore, it was time-barred---Orders of the Chairman Union Council and of Deputy Commissioner were declared to be of no legal effect and were set aside by the High court . 2003 YLR 2445 SHABBIR HUSSAIN Versus DEPUTY COMMISSIONER/CONTROLLING AUTHORITY OF UNION COUNCILS, NAROWAL
* Defendant had been directed to furnish a surety bond by the Executing court while entertaining his objection petition but he had not done so, rather he had failed to appear on the day when the impugned order was passed---No explanation in this regard had been put forth by his counsel---Such conduct appeared to be in deliberate defiance of the said order--Nothing had been brought on the file to establish that the defendant was an agriculturist within the ambit of S.2(c)(i) of Punjab Relief of Indebtedness Ordinance, 1960---Plaint showed that the defendant dealt in the business of livestock and also cultivated lands, however the defendant had denied this fact in his written statement---Impugned Order of the Executing court did not suffer from any illegality or infirmity and was consequently maintained by the High court. 2003 YLR 2415 QAMAR ZAMAN Versus JUDGE FAMILY COURT, ARIFWALA
* Family court is not a civil court stricto senso, therefore, provisions of Art. 182, Limitation Act, 1908 cannot be pressed into service---Reliance has to be placed on the residuary Article i.e. Art.181 of Limitation Act, 1908 for ex*****on of decree passed by family court ---Limitation for ex*****on of such decree is thus three years when the right to apply accrues. PLD 2001 SC 128 SYED MUHAMMAD Versus ZEENAT
* Except Ss. 10 & 11, C.P.C. no other provision of the Code was applicable to the proceedings before family court as provided under S.17, West Pakistan family court s Act, 1964---Provisions of S.48, C.P.C., therefore, could not be pressed into service in the proceedings under the West Pakistan family court s Act, 1964. PLD 2001 SC 128 SYED MUHAMMAD Versus ZEENAT
* Application for ex*****on of decree was filed after preparation of decree -sheet---Defendant claimed that decree being time-barred, ex*****on thereof, could not be granted---Validity---decree would follow judgment of family court and decree and not the judgment would be executed--decree -holder could execute decree within three years from date of decree , in terms of Art. 181, Limitation Act, 1908, which would commence from the date when decree was actually drawn and signed---Limitation would not run back to date of announcement of judgment, if decree -sheet was prepared on subsequent date---Any omission or neglect on the part of court in performance of its statutory duties could not be taken as ground to penalise decree -holder or to deprive him of his right to execute decree on account of omission or neglect on the part of court ---Period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies---ex*****on of decree within three years of preparation of decree was, thus, valid and justifiable. 1999 MLD 216 TANVEER HUSSAIN SHAH Versus PERVEEN AKHTAR
* Decree would follow judgment of family court and decree and not the judgment would be executed--decree -holder could execute decree within three years from date of decree , in terms of Art. 181, Limitation Act, 1908, which would commence from the date when decree was actually drawn and signed---Limitation would not run back to date of announcement of judgment, if decree -sheet was prepared on subsequent date---Any omission or neglect on the part of court in performance of its statutory duties could not be taken as ground to penalise decree -holder or to deprive him of his right to execute decree on account of omission or neglect on the part of court ---Period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies---ex*****on of decree within three years of preparation of decree was, thus, valid and justifiable. 1999 MLD 216 TANVEER HUSSAIN SHAH Versus PERVEEN AKHTAR
* Decree would follow judgment of family court and decree and not the judgment would be executed--decree -holder could execute decree within three years from date of decree , in terms of Art. 181, Limitation Act, 1908, which would commence from the date when decree was actually drawn and signed---Limitation would not run back to date of announcement of judgment, if decree -sheet was prepared on subsequent date---Any omission or neglect on the part of court in performance of its statutory duties could not be taken as ground to penalise decree -holder or to deprive him of his right to execute decree on account of omission or neglect on the part of court ---Period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies---ex*****on of decree within three years of preparation of decree was, thus, valid and justifiable. 1999 MLD 216 TANVEER HUSSAIN SHAH Versus PERVEEN AKHTAR
* Decree would follow judgment of family court and decree and not the judgment would be executed--decree -holder could execute decree within three years from date of decree , in terms of Art. 181, Limitation Act, 1908, which would commence from the date when decree was actually drawn and signed---Limitation would not run back to date of announcement of judgment, if decree -sheet was prepared on subsequent date---Any omission or neglect on the part of court in performance of its statutory duties could not be taken as ground to penalise decree -holder or to deprive him of his right to execute decree on account of omission or neglect on the part of court ---Period elapsing between announcement of judgment and signing of the decree will have to be accommodated in the period requisite for obtaining copies---ex*****on of decree within three years of preparation of decree was, thus, valid and justifiable. 1999 MLD 216 TANVEER HUSSAIN SHAH Versus PERVEEN AKHTAR
* Claim of plaintiff-wife in suit for recovery of dower amounting to Rs.25,000 and a house which was decree d by Judge family court in favour of plaintiff-wife--Appellate court , in appeal, decided that dower amount recoverable from husband would be Rs.25,000 only---Order passed by Trial court having been modified, executable decree , thus was with regard to a sum of Rs.25,000 only and nothing more---Competency of executing court was confined to ex*****on of decree and it had no authority to go behind the decree and look towards documents which were part of evidence, during ex*****on proceedings--Judgment delivered by Appellate court having become final same could not have been
* Decree passed by the family court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order---Executing court had to follow the procedure contained in civil Procedure Code, 1908---decree for restitution of conjugal rights would become inapplicable of ex*****on if wife had proved non-payment of dower on demand---Only attachment of property of wife could be made in ex*****on of a decree for restitution of conjugal rights---Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights---Executing court had committed an error by giving direction for personal appearance of wife in ex*****on of decree for restitution of conjugal rights---Impugned order passed by the Executing court for personal appearance of wife was set aside---Constitutional petition was accepted in circumstances. 2016 MLD 1430 Mst. SAIMA TABBASAM Versus Syed SHER SHAH
* Minors filed suit for maintenance allowance against their father which was decree d---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached---Contention of grandfather was that he was not party to the suit and decree could not be executed against him---Validity---Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children---Such liability of grandfather was dependent upon the fact that he was in easy circumstances---If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances---family court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position---No decree could be executed against a person who was not a party to the proceedings---Executing court could not go beyond the decree ---decree passed by the family court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied---Process of ex*****on of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree --family court could adopt the procedure provided in civil Procedure Code, 1908 for ex*****on of its decree ---Judgment-debtor could be sent to civil prison for one year--Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful---Constitutional petition was allowed in circumstances. PLD 2016 Lah. 622 MUHAMMAD RAMZAN Versus ALI HAMZA
* Provisions of civil Procedure Code, 1908 except Ss. 10 & 11 though had been ousted from the purview of family court s Act, 1964, however, family court might follow the procedure as contained in civil Procedure Code, 1908 for the ex*****on of decree . PLD 2016 Lah. 622 MUHAMMAD RAMZAN Versus ALI HAMZA
* Family court passed ex parte decree in favour of wife to the extent of maintenance allowance for herself and for the minor whereas her claim of dower and gold ornaments was declined---Wife-plaintiff did not challenge the said decree and filed ex*****on petition wherein husband-defendant moved an application for setting aside ex parte judgment and decree which was accepted---family court finally decree d the suit only to the extent of maintenance allowance for the wife and minor while rest of the claim in the suit was declined---Validity---Amount of Rs.5,000/- per month in case of desertion was fixed as maintenance in the Nikah Nama with mutual consent of the parties which should have been given due consideration---Nuptial disputes between the parties were consequence of unemployment of husband---No justification existed for reducing the quantum of maintenance from Rs. 5,000/- to Rs. 1,500/---Divorce certificate being a public document had presumption of correctness---Wife had been rightly held entitled for maintenance allowance beginning from July 2005 till 23-11-2007 and for the period of iddat---Wife had not challenged her portion of claim with regard to dower and gold ornaments which was declined in the ex parte decree by the family court ---Wife had acquiesced the said decision by not assailing the same through appeal---Such conduct of wife would amount to relinquishment of said part of claim---Wife would be debarred from subsequently agitating the same---Wife was having an option to file appeal but she failed to avail the same---Counter right accrued in favour of adverse party could not be discarded merely that ex parte judgment was subsequently set aside---Ex parte judgment would roll back to the extent of husband-defendant's claim---Principle of res judicata was applicable in circumstances---Wife-plaintiff could not re-agitate the claim which had already been decided finally---Period of six years from the accrual of right to sue had been provided for the recovery of maintenance allowance---Findings of both the court s below with regard to quantum of maintenance were in contravention of stipulation contained in the Nikah Nama---Wife was held entitled to maintenance @ Rs.5,000/- per month from July, 2005 to 23-11-2007---Constitutional petition was disposed of in circumstances. 2016 CLC 313 Mst. RUKHSANA KANWAL Versus ABDUL JABBAR
* Jurisdiction of Federal Shariat court was excluded in matters pertaining to Muslim Personal law---Order XXI, Rr.32 & 33, C.P.C. (which provided a mechanism to the family court for ex*****on of its judgment/decree ) were not only procedural law but also fell within the category of Muslim Personal law, thus they were excluded from the jurisdiction conferred on the Federal Shariat court ---Shariat petition was dismissed accordingly. PLD 2016 FSC 4 NADEEM SIDDIQUI Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad
* Once the gift/hiba itself was declared to be unlawful, any further transaction on the basis of the said gift would only be a nullity in the eye of law for that the wife i.e. donee of the gift did not have legal title to the house to sell the same to the petitioner---Both gift as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree for maintenance was not satisfied---decree was for the maintenance of the daughter, but unfortunately, the father in sheer disregard of his parental obligation had indulged in making unlawful transactions---court while exercising parental jurisdiction could not just sit and be a spectator in such unholy and unlawful conduct of the father---Section 13(3) of the West Pakistan family court s Act, 1964, empowered the family court 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 defaulter)---Order of attachment of the house of the father passed by the family court in ex*****on of the decree passed by it, was in accordance with law---Petition for leave to appeal was dismissed accordingly and leave was refused. 2015 SCMR 128 AMJAD IQBAL Versus Mst. NIDA SOHAIL
* Technical trappings of ex*****on of decree provided in the civil Procedure Code, 1908, were excluded from application before the family court in ex*****on of a decree for maintenance. 2015 SCMR 128 AMJAD IQBAL Versus Mst. NIDA SOHAIL
* Section 17 of West Pakistan family court s Act, 1964 excluded the application of civil Procedure Code, 1908 except Ss. 10 & 11 of the same---Procedure set out in O. XXI, C.P.C. for ex*****on of civil decree need not to be followed by a family court ---family court had been vested with the discretion as to how it would order for recovery of a money decree passed by it---Such discretion had to be exercised at the time of passing a decree ---Money decree was to be recovered as arrears of land revenue only if court had so directed at the time of passing of the same---family court might follow any procedure for implementation of its money decree including the arrest of judgment-debtor and attachment of his property if such direction had not been made by the same---Surety was as much bound by his undertaking as was the judgment-debtor---Both surety and judgment-debtor were collectively and severally liable to make payment to the decree -holder---Surety would not be absolved of his liability if judgment-debtor was sent behind the bars---Surety was to be conscious of his liabilities and he could not be allowed to evade from the same---Constitutional petition was dismissed in limine. 2015 YLR 316 MUHAMMAD AMIN Versus JUDGE, FAMILY COURT, SAHIWAL
* Agreement to sell dated 8-8-2007 was executed by husband in favour of respondent; suit for specific performance was filed on 3-1-2008, which was dismissed by the civil court , however, the appeal filed by respondent was accepted vide ex parte judgment and decree dated 28-12-2008---Agreement to sell, filing of the suit for specific performance and the judgment and decree passed in favour of respondent (objector) were all subsequent events to the decree of maintenance allowance passed in favour of the wife and minors; respondents (husband and objector) being close relatives in connivance with each other had tried to frustrate the decree of maintenance allowance passed in favour of the wife and minors---Any agreement to sell executed by the respondent (husband) regarding his property after the decree passed against him was illegal and unlawful and did not create any right in favour of the subsequent purchaser (objector)---Sale-deed executed by husband was result of fraud and connivance which could not be allowed to be made a tool to frustrate the judgment and decree of maintenance allowance passed in favour of the wife and minors---Appellate court had failed to apply its judicial mind while passing the judgment and decree ---Constitutional petition was allowed in circumstances. 2015 CLC 667 SAIMA PERVEEN Versus NAEEM AHMAD NASIR
* Defendant was brought before court in ex*****on petition for maintenance allowance while he was under arrest in civil prison for failure to pay decretal amount in ex*****on petition for dowry articles---Executing court should have made speaking orders in ex*****on petition for maintenance allowance as defendant had been brought before the court in both ex*****on petitions which had been in progress simultaneously---Omission of the executing court to pass a speaking order could not prejudice the rights of defendant who could not be vexed twice by sending to civil prison for more than one year which he had already served---Petition was accepted---Order of re-arrest of defendant was set aside. 2014 MLD 1809 SHAFQAT IBRAR Versus JUDGE FAMILY COURT
* After the compromise, the husband/judgment-debtor had not taken any ground that any amount towards the satisfaction of the decree was paid privately to the wife---Withdrawal of first ex*****on petition on the basis of compromise was not absolute but was on the basis of settlement arrived at that time, and till the satisfaction of a decree , it could be executed within the given aggregate period of six years, from the date of the decree ---family court could exercise its own powers to prevent the course of justice being deflected from its path---family court had to regulate its own proceedings in accordance with provisions of the West Pakistan family court s Act, 1964 and in doing so, it had to proceed on the premise that every procedure was permissible unless a clear prohibition for the same was found in law, meaning thereby that the family court could exercise its own powers but was not debarred to follow the principles of the civil Procedure Code, 1908 coupled with the facts of a case---West Pakistan family court s Act, 1964 and the Rules made thereunder had not expressly prohibited the filing of a second ex*****on petition especially in the circumstances when there was nothing on record that after the compromise and withdrawal of the first ex*****on petition, any payment had been made or efforts were completed for satisfying the decree privately---Constitutional petition was dismissed. PLD 2012 Pesh. 159 IFTIKHAR KHAN Versus Mst. AMINA BIBI
