MUHAMMAD WAQAR WASI Versus Mst. AMBER ABID

MUSARRAT HILALI, J.--- This Civil Petition for Leave to Appeal is directed against the judgment dated 14.06.2022 passed by the Islamabad High Court, Islamabad in Writ Petition No.2031 of 2019, whereby the judgment dated 08.04.2019 passed by the learned Additional District Judge (West), Islamabad (Appellate Court) was set aside and the order of the learned Executing Court dated 14.03.2019 was restored, holding that the 20% annual increase in the maintenance allowance was to be calculated on a cumulative (compound) basis.

2.Briefly stated, the respondents instituted a suit for recovery of maintenance on 23.11.2013, which was decreed by the Family Court vide judgment dated 02.07.2015. The petitioner was directed to pay maintenance to his minor children at the rate of Rs.65,000/- per month in aggregate, along with a 20% per annum increase. The decree attained finality up-to this Court.

3.During execution proceedings, a dispute arose regarding the mode of calculation of 20% annual increase. The learned Executing Court, vide orders dated 10.12.2018 and 14.03.2019, held that the increase was to be calculated on the enhanced amount of each preceding year, i.e., on a compound basis. The appeal filed by the petitioner was allowed by the Appellate Court on 08.04.2019, which held that the increase was to be calculated on the originally decreed amount, i.e., on a simple basis. The High Court through the impugned judgment, however, interfered in its constitutional jurisdiction and restored the view of the Executing Court and held that annual increase was to be calculated on a compound basis.

4.Learned counsel for the petitioner submits that the impugned judgment is based on misreading of the decree, as the decree nowhere provides for compound increase. It is contended that in the absence of an express stipulation, the increase must be calculated on a simple basis. Conversely, learned counsel for the respondents supports the impugned judgment and submits that the increase must be calculated on the compound basis.

5.We have heard the learned counsel for the parties and examined the record.

6.At the outset, it is important to note that the decree dated 02.07.2015 provides for a 20% per annum increase in maintenance allowance but is silent as to the manner in which such increase is to be calculated. The controversy, therefore, is whether such increase is to be calculated on simple or compound basis.

7.In these circumstances, the question arises whether, in the absence of an express provision in the Family Courts Act, 1964 (Act) or in the decree itself, guidance may be drawn from the general principles embodied in the Code of Civil Procedure, 1908 (C.P.C.). In Muhammad Asim v. Mst. Samro Begum (PLD 2018 SC 819) , this Court held that although section 17 of the Act excludes the formal application of the Code, such exclusion is aimed at avoiding technicalities and ensuring expeditious disposal of the family disputes; however, the Appellate Court is not barred of its inherent powers and may draw upon the general principles of the C.P.C. where necessary. This principle has been further elaborated in Fozia Mazhar v. Additional District Judge (PLD 2024 SC 771) , wherein it was held that the Family Court is not barred from following the general principles of the C.P.C. and may borrow such principles to regulate its proceedings, particularly where the statute is silent and no express prohibition exists.

8.The consistent view running through the above cited precedents is that while the rigours and technicalities of the C.P.C. stand excluded, its general principles remain available as guiding tools in the areas where the Act is silent, so long as such application does not frustrate the object of the Act. In the present case, borrowing the settled principle that in the absence of express provision, calculation on a compound basis cannot be presumed, neither results in technicality nor delays in proceedings; rather, it provides certainty to the decree under execution, which itself has not mentioned whether the annual increase is to be calculated on a compound or simple basis. In Najm Koreshi v. Chase Manhattan Bank (2015 SCMR 1461) , this Court held that the grant of interest, including the rate and mode of its calculation, is a matter of discretion which must be expressly stated in the decree. It was further held that unless a decree specifically provides for interest on the aggregate amount or interest upon accrued interest, the same cannot be inferred, and silence of the decree is to be treated as refusal of compound interest, with the consequence that interest accrues on a simple basis. The Supreme Court in Najm Koreshi ( supra ) further elaborated the settled principle that an Executing Court is bound to implement the decree strictly in accordance with its terms and cannot add to or vary the same. Where the decree is silent regarding compounding, the increase or interest must be confined to the originally decreed amount and not extended to the accumulated sum, to be increased every year.

9.Applying the above principle to the present case, the decree does not provide that the 20% increase shall be calculated on a compound basis. The expression used in the decree does not indicate that each subsequent increase would be calculated on the enhanced amount of the previous year. In the absence of such express stipulation, the learned Executing Court clearly fell into error by calculating the increase on a compound basis, thereby going beyond the decree. The learned Appellate Court rightly corrected this error by holding that the said 20% increase is to be calculated each year on the originally decreed amount i.e. Rs.65,000/-.

10.The High Court, while exercising jurisdiction under Article 199 of the Constitution, was also not justified in interfering with the well-reasoned judgment of the Appellate Court. As discussed above, it is settled that in execution matters, the Court cannot rewrite the decree or impose a burden not imposed therein. The approach adopted by the High Court, in effect, amounts to introducing a concept of compounding which is not backed by the decree itself.

11.The reasoning adopted by the High Court, based on the analogy with commercial practices or inflationary considerations, cannot override the express terms of the decree, which remained silent as to the fixation of increase on a compound basis. The increase granted in the maintenance is not in the nature of interest under section 34, C.P.C., but even if analogy is drawn, the settled principle remains that compounding must be expressly provided in the decree and cannot be presumed or inserted afterwards during the execution stage.

12.In view of the above, we find that the judgment of the Appellate Court is in accordance with the law whereas the impugned judgment of the High Court suffers from the legal infirmity.

13.Before parting with this judgment, we deem it appropriate to observe that in matters pertaining to family maintenance, where courts exercise discretion to grant periodic increase, it is incumbent upon the Family Courts to clearly specify the mode and manner of such increase. In particular, it must be expressly stated whether such increase is to operate on a simple basis or on a compound basis. Such clarity would avoid unnecessary litigation at the execution stage and ensure certainty in execution of decrees.

14.For the foregoing reasons, this petition is converted into an appeal and is allowed. The impugned judgment dated 14.06.2022 passed by the Islamabad High Court, Islamabad is set aside. The judgment dated 08.04.2019 passed by the learned Additional District Judge (West), Islamabad is maintained.

UN/M-8/SC Appeal allowed.