Haji MUHAMMAD NAWAZ vs SAMINA KANWAL and others

ANWAR ZAHEER JAMALI, C.J.---This civil petition for leave to appeal is outcome of the proceedings for execution of decree dated 31.5.2003/31.1.2004, passed by the Family Court, Sialkot in favour of respondent No,1, which attained finality when the Supreme Court of Pakistan dismissed the earlier petition of the petitioner vide its order dated 01.2.2011. The execution application filed by respondent No,1 was allowed by the Civil Judge 1st Class. Sialkot vide order dated 04.12.2013 in the following manner: - "Now to come up for payment of all the remaining dowry' articles mentioned at Sr. Nos. 23, 28, and 9 (A VCR only) of list Ex. P1 on the date already fixed i,e.

13.12.2013. It is made clear that golden ornaments mentioned at Sr. No,23 shall be paid either in the shape of golden ornaments or in alternative price thereof as per market value of the gold at the date of its payment."

2. Aggrieved by the above order, petitioner preferred appeal before the District Judge, Sialkot, which was dismissed vide order dated 17.12.2013. These concurrent findings regulating the terms about the execution of decree in favour of respondent No,1 were further challenged by the petitioner before the Lahore High Court, Lahore, in Writ Petition No,33208/2013, which was dismissed vide impugned order dated 22.12.2013, inter alia, seeking guidance from the judgment in the case of Ayesha Shaheen v. Khalid Mehmood (2013 SCM R 1049).

3. We have heard the arguments of learned ASC for the petitioner and perused the material placed on record with the petition as well as C.M.A. No,1614-L/2015. The judgment of the appellate Court dated 31.1.2004, reveals that the suit for recovery of dowry articles was decreed as per the list Ex.P-1, or in the alternative the costs of dowry articles at Rs,8,31,700/-, which remained unsatisfied for a period of over one decade. In such circumstances the executing Court in order to enforce the execution of decree in its letter and spirit, was fully justified in placing its reliance upon the ratio of judgment in the case of Ayesha Shaheen (supra) and some other cases referred to in its order dated 04.12.2013, which has been rightly upheld by the appellate Court and the High Court in their respective orders under challenge. The learned ASC for the petitioner has repeatedly contended that as the executing Court cannot go beyond the decree, therefore, the course for execution of decree followed by the three Courts below is unwarranted by law. We are not convinced with such submission, as grant of requisite relief regarding payment of price of golden ornaments at the prevalent market rate, in case the golden ornaments are not returned, is fully justified and it cannot be said that it amounts to going beyond the terms of decree by the executing Court. For this purpose, the ratio of judgment in the above cited case of Ayesha Shaheen (supra) is also fully applicable to the facts and circumstances of the present case.

4. Foregoing are the reasons for our short order, whereby this petition was dismissed today.

Sd/- Anwar Zaheer Jamali, C.J.

Sd/- Umar Ata Bandial, J Sd/- Ijaz ul A6san, J ' I respectfully agree for reasons given in my note. Sd/- Umar Ata Bandial. J ' UMAR ATA BANDIAL, J.---The judgment handed down by the Hon'ble Chief Justice arrives at a conclusion with which I agree whole heartedly. The reasons for doing so are given below.

2. The objection that the learned Executing Court cannot go beyond the terms of the decree is derived from the Code of Civil Procedure, 1908 ("C.P.C."). On the other hand, under the provisions of section 17 of the West Pakistan Family Courts Act, 1964 ("the Act"), the C.P.C. Does not apply to the proceedings of the learned Family Court that passed the decree dated 31.01.2004 under execution in the present case. The petitioner's objection is therefore inapplicable to the present proceedings.

The said decree has two alternative parts. Firstly, it gives a direction to the petitioner/judgment debtor to return the dowry articles to the respondent/decree holder as detailed in Exb.P1 filed with the suit; in the alternative, in case of failure to return the said articles, the decree orders payment of a lump sum amount of Rs,831,700/- to the respondent/decree holder as value of the said dowry articles. The petitioner has not delivered the decretal dowry articles to the respondent. For the satisfaction of its money terms under section 13(3) of the Act, the decree is liable to be implemented within 30 days. However, even after the lapse of 12 years of its passing, the petitioner/judgment debtor has not deposited a single rupee with the learned Executing Court towards the adjustment of the said decree. Execution of the decree has been delayed by the petitioner solely on the above objection although he cannot have any cavil with the amount fixed therein. Having been expressed in the alternative, the decree does not become a decree for money simpliciter for the amount stated therein. This because the price of dowry articles fixed in the alternative by the decree under execution represents their market value as on the date of decree.

Such market value of the decretal dowry articles cannot remain static endlessly, therefore the alternative monetary direction in the decree cannot remain fixed after lapse of reasonable' time. In terms of law, the proceedings of the learned Family Court, whether as a trial court or an executing court, are I governed by the general principles of equity, justice and fair play. The circumstances of the present case, namely, delay of more than 12 years in the execution of the decree on the basis of an inapplicable objection cannot under the principles of equity, justice and fair play be allowed to defeat the decree under execution by the petitioner's refusal to both I deliver the dowry articles and also to pay their corresponding market value as on the date of payment. For the foregoing reasons, the petition is dismissed and leave to appeal is declined.

Sd/- Umar Ata Bandial, J