(2020 LHC 2814)
a. Executing court cannot go beyond the decree.
b. owner of property find mentioned in the Nikahnama,
c. Judgment and decree of learned Judge Family Court that with regard to the property/land decreed in favour of “respondent” as dower alternate price is also fixed, which clearly removes any impediment in the way of execution of decree
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2020 LHC 2814
WRIT PETITION NO.9155 of 2017
MUHAMMAD AMIN
Versus
ADDITIONAL DISTRICT JUDGE, KHAIRPUR TAMEWALI and
2 others
Date of hearing: 28.10.2020
Petitioner by: Rao Muhammad Ashraf
Idrees, Advocate.
Respondent No.3 by: Ch. Muhammad Ejaz Arshad,
Advocate
JUDGMENT
MIRZA VIQAS RAUF, J. The petitioner namely
Muhammad Amin is father of Muhammad Imran, who married to
Asima Sadiq i.e. respondent No.3 (hereinafter referred as
“respondent”). On account of some differences between the spouses
“respondent” instituted two suits, one for recovery of maintenance
and the other for dower whereas Muhammad Imran instituted a suit
for restitution of conjugal rights. The petitioner was arrayed as one
of the defendants in the suit for recovery of dower. Suits were
consolidated and multiple issues from the divergent pleadings of
the parties were framed. After recording of evidence from both the
sides suits instituted by the “respondent” were partly decreed
whereas suit for restitution of conjugal rights was dismissed
through judgment dated 30th November, 2011. Feeling aggrieved,
the “respondent” as well as Muhammad Imran preferred two
separate appeals before the learned Additional District Judge,
Khairpur Tamewali. The appeal filed by Muhammad Imran was
dismissed whereas appeal preferred by the “respondent” was partly
allowed vide judgment dated 08th May, 2012. The “respondent”,
feeling dissatisfied filed Writ Petition No.4952 of 2012 which was
accepted through judgment dated 14th July, 2015 and case was
remanded to the learned Additional District Judge with a direction
to give its findings on issue No.4. In post-remand proceedings
learned Additional District Judge decided issue No.4 in negative
holding the petitioner as necessary and proper party to the lis vide
judgment dated 14th September, 2015. The “respondent” challenged
the said judgment through Writ Petition No.9416 of 2015, however,
same was dismissed as having not been pressed vide order dated
19th May, 2016. This followed an execution petition which was
resisted by the petitioner through an objection petition asserting
therein that decree is not executable against him. His objections
were, however, turned down vide order dated 10th June, 2017,
which was though assailed in appeal before the learned Additional
District Judge but of no avail and the same was dismissed through
judgment dated 20th October, 2017, hence this petition under
Article 199 of the Constitution of the Islamic Republic of Pakistan,
1973.
2. Though this petition is still at pre-admission stage but in
view of controversy involved in the same, learned counsel for both
the sides have agreed to treat the same as pacca case, so it is to be
decided as such.
3. Learned counsel for the petitioner contended that the
petitioner was though initially made party to the suit but on his
objection that he is not a necessary party a specific issue to this
effect was framed. Added that the learned Judge Family Court on
conclusion of trial decided issue No.4 in affirmative and held that
the petitioner is unnecessary party in the suit, who is liable to be deleted. Submitted that after decision in the appeals preferred by
the “respondent” and son of the petitioner, the matter came up
before this Court through Writ Petition No.4952 of 2012 which was
decided on 14th July, 2015. While making reference to the said
decision, learned counsel emphasized that matter was remanded to
the learned Additional District Judge for a limited purpose to the
extent of decision on issue No.4 only. Learned counsel maintained
that though in terms of judgment dated 14th September, 2015,
learned Additional District Judge held that the petitioner is a
necessary party but even then there is no decree against him. It is
emphatically argued that objection petition has been dismissed in a
perfunctory and illegal manner.
4. Conversely, learned counsel for the “respondent” submitted
that the petitioner being father of the groom was a necessary and
proper party to the suit. He added that in the light of decision on
issue No.4, the petitioner also becomes a judgment debtor and
decree was executable against him .
5. Heard. Record perused.
6. It is an admitted fact that the petitioner is father of groom and
he is owner of property find mentioned in the Nikahnama, which
was agreed to be given to the “respondent”. The petitioner in this
capacity was made party (defendant No.2) to the suit for recovery
of dower. He resisted the suit and resultantly several issues were
framed including issue No.4 to the following effect :-
4. Whether defendant No.2 is unnecessary party in the
suit and liable to be deleted? OPD
7. Leaving aside unnecessary details it is observed that suit was
decreed vide judgment dated 30
th November, 2011, however, issue
No.4 was answered in positive declaring the petitioner as
unnecessary party in the suit and accordingly his deletion from the
array of defendants. The “respondent” as well as Muhammad Imran, feeling aggrieved from the said judgment and decree
preferred their respective appeals, however, appeal preferred by
“respondent” was partly allowed whereas appeal filed by
Muhammad Imran was dismissed through judgment dated 08th
May, 2012 but findings on issue No.4 were maintained with the
following observations :-
“14. The upshot of the above discussion is that the appeal of
the appellant Muhammad Imran has no force, the same is
hereby dismissed while the appeal of respondent Asima Sadiq
is hereby partially allowed to the extent of her claim for the
payment of Rs.50,000/- in violation of condition mentioned in
column No.18 of Nikah Nama while appeal to the extent of
recovery of 5 tola gold dower and enhancement of maintenance
is dismissed. The decree sheet be drawn accordingly. There is
no order as to costs. Record of learned trial Court be sent back
immediately whereas files of both appeals be consigned to
record room after due completion.”
The “respondent” then filed Writ Petition No.4952 of 2012 which
was accepted through judgment dated 14th July, 2015 and case was
remanded to the learned Additional District Judge with the
direction to give its findings on issue No.4, however, findings given
by the learned Additional District Judge on remaining issues were
kept intact. In post-remand proceedings learned Additional District
Judge while forming a contra view decided issue No.4 in negative
holding the petitioner as necessary party through judgment dated
14th September, 2015. The “respondent” again preferred Writ
Petition No.9416 of 2015 challenging the vires of said judgment but
same was dismissed as having not been pressed vide order dated
19th May, 2016.
8. The question thus arises as to “whether decree is executable
against the petitioner or otherwise? As already observed that suit
was initially decreed vide judgment dated 30th November, 2011. It
is apparent therefrom that while decreeing the suit learned Judge Family Court had specifically mentioned that the decree is against
defendant No.1 (Muhammad Imran). A decree always follows the
judgment. Perusal of the decree also reveals that suit was decreed to
the extent of Muhammad Imran whereas claim of the “respondent”
was dismissed to the extent of petitioner. Though in appeal learned
Additional District Judge while partly allowing the appeal of the
“respondent” modified the judgment of the learned Judge Family
Court but there was no change qua the impact of the decree. The
matter when came up before this Court in Writ Petition No.4952 of
2012 same was remanded to the learned Additional District Judge
with a direction to give its findings on issue No.4 while keeping the
findings on the remaining issues as intact. This fact clearly signifies
that no modification was made with regard to the findings on other
issues. This was the reason that the learned Additional District
Judge in post-remand proceedings while deciding issue No.4 has
specifically held as under :-
“16. This court is only deciding this controversy whether
defendant No.4 is necessary party to the suit or not?”
9. It is trite law that executing court cannot go beyond the
decree. In view of discussion made hereinabove there can be no
second opinion that decree was only against Muhammad Imran and
despite contra finding on issue No.4 as the findings on the other
issues were kept intact so there will be no change qua the dictates
of the decree. It is apparent from the judgment and decree of
learned Judge Family Court that with regard to the property/land
decreed in favour of “respondent” as dower alternate price is also
fixed, which clearly removes any impediment in the way of
execution of decree against Muhammad Imran. Reliance in this
respect, if needed, can be placed on “Ch. AHMED NAWAZ versus
PROVINCE OF PUNJAB through Land Acquisition Collector, Jhelum and
others” (2015 SCMR 823) and “IRSHAD MASIH and others versus
EMMANUEL MASIH and others” (2014 SCMR 1481).
10. The nutshell of above discussion is that the petitioner cannot
be termed as judgment debtor and as such his objection petition was
tenable. The courts below have grossly misread the record and
concurrent findings to this effect are tainted with illegalities and
perversities, resultantly this petition is accepted, consequently
impugned judgment as well as order is set aside, as a sequel
thereof, objection petition filed by the petitioner stands allowed
with no order as to costs.
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