MUHAMMAD RAMZAN vs Mst. AFSHAN KANWAL and 2 others

' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the order of Judge Family Court, Lahore dated Ist of October, 1988, which was maintained by the Additional District Judge, Lahore on 4th of February, 1989 and arises out of an execution matter.

2. The petitioner was directed by the Judge Family Court on 29th July, 1985 to pay maintenance to respondent No,1 at the rate of Rs,500 per month. As the petitioner failed to discharge his liability, respondent No,1 applied for execution of the decree of the Family Court by filing an application under section 13 of the Punjab Family Courts Act 1964. In response to the notice issued by the Family Court, the petitioner appeared and objected that the execution petition was not maintainable before the Family Court in view of section 13 (3) of the Family Courts Act 1964 which provides for execution of the decree for recovery of money as arrears of land revenue and the decree can only be enforced by the Collector. Finding no merit in this objection, the Family Court proceeded to dismiss the application filed by the petitioner in this behalf on Ist of October, 1988.

This order was challenged by the petitioner by filing a revision which was rejected by the Additional District Judge, Lahore on 4th of February, 1989 holding that revision against the order passed by the Family Court was not maintainable and further that the Family Court had the jurisdiction to execute the decree for maintenance. Hence this petition.

3. Syed Waheedur Rehman Gilani, learned counsel appearing for the petitioner has reiterated that the decree under execution being for recovery of money, it could only be executed by the Collector under section 13 (3) of the Act as the amount was to be recovered as arrears of lanthrevenue. The learned counsel has endeavour to draw support for the contention from Lal Muhammad and another v. Mst. Niaz Parwara (PLD 1970 Peshawar 52) and Nasir Khan v. Tahira Rashida (1986 CLC 2381).

4. Mr. Muhammad Yasin Chughtai, Advocate appearing for respondent No,1 has on the other hand contended that section 13 (3) of the Act applies only in cases where it is directed by the Court that the decree should be executed as arrears of land revenue and not otherwise. The learned counsel has placed reliance upon the case of Samia Akber v. Muhammad Zubair (PLD 1990 Lahore 71).

5. Section 13 (3) which provides for enforcement of decree passed by the Family Court under the Punjab Family Courts Act 1964 reads as under:- Section 13 (3) "Where a 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." .

On the plain reading of this provision it is obvious that if the decree relates to payment of money, the decretal amount can be recovered as arrears of land revenue but if the Court so direct. This subsection is in the nature of an enabling provision and provides an additional procedure which can be adopted for enforcing the decree under a specific order of the Court directing the recovery as arrears of land revenue. It does not however, in any manner effect the general provision in subsection (4) for execution of the decrees passed by the Family Court. If subsection (3) and subsection (4) are read together, the inevitable conclusion is that all decrees passed by the Family Court are to be executed by it or by such other Civil Court as the District Judge may by special and general order direct. In matters where the decree relates to recovery of money an additional power is vested in Court to direct the recovery as arrears of land revenue. There is no warrant, however, for construing subsection (3) as ousting the jurisdiction of the Family Court to execute the decree.

6. Furthermore, even in cases where the decretal amount is directed to be recovered as arrears of land revenue, the execution petition has to be filed before the Family Court, which may forward the warrants to the Collector for recovering the money as arrears of land revenue.

7. Reliance of the learned counsel on the case reported as Lal Muhammad and another v. Mst. Niaz Parwara (PLD 1970 Pesh. 52) is not apt as the dispute in that case related to a decree for restitution of conjugal rights. As regards the other precedent relied upon by the learned counsel namely Nasir Khan v. Tahira Rashida (1986 CLC 2381) the ratio in that case goes against the contention of the learned counsel for the petitioner rather than advancing it for what has been held in that case is that Family Court can execute the decree for recovery of money but cannot commit a person to civil prison without following the procedure prescribed under section 13(3). There is nothing in that judgment to suggest that the execution petition cannot be filed before the Family Court or that even in the absence of a specific direction to recover the money as arrears of land revenue, the decree cannot be enforced in any other manner by the Family Court.

For the reasons aforesaid there is no force in this petition, which is dismissed leaving the parties to bear their own costs.