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Constitutional Petition No. S‑137 of 1986, decided on 24th February, 1987.

‑‑‑S. 13(3) & (4)‑‑Enforcement of Family Court decrees‑‑Mode of execution‑‑Discretion of Family Courts in execution of money decrees‑ Scope.

Subsections (3) and (4) of sections 13 of West Pakistan Family Courts Act, 1964 indicate that according to subsection (4) a decree passed by a Family Court is to be executed by that Court or any other civil Court as the District Judge may by special or general order direct but no particular procedure or manner in regard to execution of such decrees is provided. However, according to subsection (3) if the decree relates to the payment of money and the decretal amount has not been paid within the time specified by the Court, then if the Family Court so directs, the decretal amount is to be recovered as arrears of land revenue. The words 'if the Court so directs' occurring in subsection (3) of section 13 of the Act indicate that the executing Court has a discretion in the matter while ordering recovery of the decretal amount. Regarding question whether subsection (3) empowers the executing Court to order recovery of the decretal amount otherwise than as arrear‑ of land revenue, it seems that if the Legislature had so intended, it would have found it unnecessary to provide for a special procedure for execution of money decrees. Besides that, in subsection (4) of section 13, the Legislature has not provided for the same procedure for execution of decrees other than money decrees passed by the Family Court, therefore, when the Legislature has provided for a separate mode of execution in case of money decrees the intention clearly appears to be that money decrees should not be executed in the same manner as other decrees. Consequently, it appears, that the discretion given to the executing Court does not relate to the mode of execution but to other incidental matters. For example, the Court may postpone the recovery of the decretal amount from the judgment‑debtor or it may allow him further time to pay the decretal amount as contemplated under subsection (3). Beyond such matters, the discretion vesting in the Family Court does not extend further.

Nisar Khan v. Tahira Rashida 1986 C L C 2381 and Lal Muhammad and another v. Mst. Niaz Parwara P L D 1970 Pesh. 52 ref,

‑‑‑Art. 199‑‑West Pakistan Muslim Family Courts Act (XXXV of 1964), S.13(3) & (4)‑‑Constitutional jurisdiction, exercise of‑‑Where orders passed by Court regarding execution of Family Court decrees were not in accord with mode of execution prescribed in Ss.13(3) & (4) of West Pakistan Family Courts Act, 1964, High Court in exercise of constitutional jurisdiction set aside such execution and directed Trial Court to proceed for execution thereof in accordance with law.

Jamil Raza Zaidi for Petitioner.

Muhammad Ahsan Shaikh for Respondents.

Date of hearing: 3rd February, 1987.

The petitioner was a defendant in a family suit filed by the respondent No. 3 in this case before the learned Tenth Family Judge (West), Karachi and by a decree passed by the learned Family Judge he had been ordered to pay maintenance to his wife the respondent No. 3 and his son. An application for execution of the decree was filed by the respondent and the learned Family Judge while purporting to act under section 13(3) of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as 'the Act') ordered issuance of writ of attachment in respect of 50 of the salary of the petitioner. The petitioner appealed against this order to the learned District Judge (West), Karachi, contending that the mode of execution of money decrees provided in the Act was different. However, the learned District Judge dismissed the appeal, holding that under section 13(3) of the Act the executing Court had discretionary power to execute decrees passed by the Family Courts and a decree could be executed even otherwise than by recovery of the decretal amount as arrears of land revenue. It is this order which has now been impugned by the petitioner in this petition.

The contention of Mr. Jamil Raza Zaidi, learned counsel for the petitioner has been that both the orders of the learned executing Court as well as the Appellate Court are erroneous as section 13(3) of the Act leaves very little discretion for the Family Court as to the mode of execution of money decrees. Reliance has been placed by the learned counsel on Nisar Khan v. Tahira Rashida 1986 C L C 2381 and Lal Muhammad and another v. Mst. Niaz Parwara P L D 1970 Pesh. 52. In the first case decided by the High Court of Lahore, the executing Court in execution of a money decree committed the judgment‑debtor to civil prison for non‑payment of decretal amount. The High Court set aside the order by holding the same to be illegal. In the second case the Peshawar High Court while distinguishing the provisions of subsection (3) from those of subsection (4) held that the Act had provided a special procedure for execution of money decrees but no such procedure had been provided for execution of other type of decrees and consequently except money decrees, all other decrees of a Family Court could be executed in the manner provided by the C.P.C. Mr. Muhammad Ahsan Shaikh, learned counsel for the respondent has however, tried to distinguish the cases cited by Mr. Jamil Raza Zaidi and has fully supported the two impugned orders.

Section 13 of the Act around which the controversy revolves provides as follows:--

"Section 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) Whereas decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, 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 instalments as it deems fit."

A perusal of subsections (3) and (4) of section 13 indicates that according to subsection (4) a decree passed by a Family Court is to be executed by that Court or any other civil Court as District Judge may by special or general order direct but no particular procedure or manner in regard to execution of such decrees is provided. However, according to subsection (3) if the decree relates to the payment of money and the decretal amount has not been paid within the time specified by the Court, then if the Family Court so directs, the decretal amount is to be recovered as arrears of land revenue. The learned District Judge while dismissing the appeal was of the view that the words 'if the Court so directs' gave a wide discretion to the Family Court to order recovery of the decretal amount otherwise than as arrears of land revenue, and consequently he found the order of the learned Family Court to be unexceptionable. Although on the first impression the reasons given by the learned District Judge appear to be convincing but after giving the matter my most anxious consideration I find that the view taken by the learned District Judge is not correct. No doubt the words 'if the Court so directs' occurring in subsection (3) of section 13 of the Act indicate that the executing Court has a discretion in the matter while ordering recovery of the decretal amount but the question is, does subsection (3) empower the executing Court to order recovery of the decretal amount otherwise than ‑as arrears of land revenue If the Legislature had so intended, then I am certain, it would have found it unnecessary to provide for a special procedure for execution of money decrees. Besides that, as pointed out earlier, in subsection (4) of section 13 the Legislature has not provided for the same procedure for execution of decrees other than money decrees passed by the Family Court, therefore, when the Legislature has provided for a. separate mode of execution in case of money decrees the intention clearly appears to be that money decrees should not be executed in the same manner as other decrees. Consequently, it appears, that the discretion given to the executing Court does not relate to the mode of execution but to other incidental matters. For example, the Court may postpone the recovery of the decretal amount from the judgment‑debtor or it may allow him further time to pay the decretal amount as contemplated under subsection (3). In my opinion, beyond such matters, the discretion vesting in the Family Court does not extend, further. I am also fortified in my view to a great extent by the authorities just referred to by me above and consequently I am of the view that both the impugned orders are erroneous and need to be set aside.

I, therefore, allow this petition and quash the impugned orders, dated 14‑9‑1986 and 1‑11‑1986 respectively. The case is remanded to the executing Court for proceeding in accordance with law. There will) be no order as to costs.

A . A . /P‑4/ K Petition accepted.

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