12. Now coming to the question that on which date the alternate price of the gold ornaments is to be determined. There is a plethora of judgments of this Court as well as the Hon’ble Apex Court that in case of a decree of gold ornaments the alternate price is to be determined at the time its execution, so, that on failure of return of gold ornaments the decree holder would be able to fetch equal weight of the gold. Learned Judge Family Court while awarding alternate price of the gold ornaments at the rate which was prevailing at the time of filing of institution of suit, relied upon the judgment of the Hon’ble Supreme Court of Pakistan reported as Mst. Mehbooba ..Vs.. Abdul Jalil (1996 SCMR 1063). The facts and circumstances of the said case are distinguishable. In the said case plaintiff/wife had not claimed recovery of gold ornaments rather she specifically claimed alternate value of the gold ornaments specified in the plaint. Therefore, it was held by the Hon’ble Apex Court that she was held entitled to market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as no decree for delivery of gold ornaments had been passed. She was granted money decree simplicitor. While in the present case respondent claimed for a decree of gold ornaments or in the alternative its market value and the same was awarded to her by the learned courts below, therefore, while determining alternate price of said gold ornaments prevalent at the time of institution of suit, both the courts committed material illegality and irregularity. Reliance is placed on case reported as Mst. Ayesha Shaheen ..Vs.. Khalid Mehmood and another (2013 SCMR 1049) wherein the Hon’ble Apex Court while distinguishing Mst. Mehbooba’s case referred supra has observed as under:-
“The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case of Mst. Humaira Majeed V. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order XX, Rule 10, C.P.C. will not be applicable strictly to the execution of a decree by the Family court in view of section 17 of the West Pakistan Family Courts Act, 1964.”
Part of Judgment :
12640-13
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