-Petitioner filed application for setting aside ex-parte degree--Court compromise between parties--Execution petition as well as suit were withdrawn--Application for restoration of execution petition --Suit for recovery of maintenance allowance-

 PLJ 2021 Lahore 599

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Law Ordinance, 1961, S. 9--Suit for recovery of maintenance allowance--Ex-parte declared--Execution petition--Petitioner filed application for setting aside ex-parte degree--Court compromise between parties--Execution petition as well as suit were withdrawn--Application for restoration of execution petition--Dismissed--Fresh execution petition--Dismissed--Appeal--Accepted--Challenge to--Neither judgment was set-aside nor modified as per statement--Valid lawful decree--Legal obligation of father--Record shows that on 29.1 1.2014, parties} got recorded their respective statements before Judge Family Court to effect that Respondent No. 2 started living with petition owing to compromise between parties and they were, not willing to pursue their cases--Resultantly execution petition as well as application, seeking setting aside of ex parte decree was ordered to be dismissed as withdrawn--It is no where mentioned in said order or in statements that decree would not hold field--Neither it was set-aside, nor modified as per alleged settlement--Respondent No. 2 could not have been estopped to get execution of a valid lawful decree as decree holder has right to get it executed within contemplation of provisions of law--Matter pertains to maintenance allowance of minor as well, therefore, petitioner cannot hide himself behind procedural technicalities--Petitioner, being a father, is under legal obligation to maintain his child--Question of payment of maintenance allowance must be addressed to its ultimate conclusion--Impugned order has rightly been passed after appreciating facts and circumstances of case--So far as plea that Respondent No. 3 is not entitled to get maintenance allowance for period when she resided with petitioner after compromise, shall be considered by Executing Court at time of calculating arrears of maintenance allowance--Petition was dismissed.

                                                                           [Pp. 602 & 603] A & B

Ch. Shamshad Ali Bajwa, Advocate for Petitioner.

Mr. Raheel Kamran Cheema, Advocate for Respondent No. 3.

Date of hearing: 1.3.2018.

 PLJ 2021 Lahore 599
Present: Muhammad Sajid Mehmood Sethi, J.
NADEEM PARVAIZ--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, SIALKOT & others--Respondents
W.P. No. 79 of 2017, decided on 1.3.2018.

Order

Through instant petition, petitioner has assailed judgment and decree dated 14.10.2016. passed by learned Additional District Judge, Sialkot, whereby appeal filed by Respondent No. 2, was accepted, order dated 02.05.2016, passed by learned Judicial Magistrate 1st Class, Sialkot was set-aside and execution petition filed against petitioner was restored.

2. Brief facts of the case are that suit filed by Respondents No. 2 & 3 was ex-parte decreed by learned Judge Family Court, vide judgment and decree dated 03.05.2014. Thereafter, execution petition was filed. Petitioner filed application seeking setting aside of said ex-parte judgment and decree. During proceedings, an out of Court compromise was reached between the parties, as a result, execution petition as well as suit were withdrawn on 29.11.2014. Subsequently, application seeking restoration of the execution petition was filed, which was dismissed vide order dated 15.02.2016, passed by learned Judge Family Court. Respondent No. 2 filed fresh execution petition, which was contested by petitioner by filing, objection petition. Ultimately, execution petition was dismissed by accepting objection petition of petitioner vide order dated 02.05.2016. Feeling dissatisfied, Respondent No. 2 assailed said order in appeal before learned lower Appellate Court, which was accepted vide order dated 14.10.2016 and execution petition was restored. Hence, instant constitutional petition.

3. Learned counsel for petitioner submits that after dismissal of application seeking restoration of first execution petition, fresh execution petition, without disclosing said fact, was not competent but this aspect of the matter has been overlooked while passing the impugned order. He adds that impugned order does not contain valid lawful reasons for restoring the execution petition. In the end, he submits that impugned order is not sustainable in the eye of law.

4. Learned counsel for Respondent No. 3 defends the impugned order and submits that learned counsel for petitioner has failed to point out any illegality or legal infirmity in the same, which is liable to be upheld.

5. Arguments heard. Available record perused.

6. The operative part of impugned order is reproduced hereunder:

“6. Perusal of record reveals that appellant / decree holder filed a suit for recovery of maintenance allowance on 08.01.2014 which was decreed in her favour vide judgment and decree dated 03.05,2014 passed by Mr. Masood-ul-Hassan, learned Judge Family Court, Sialkot and on 10.09.2014 learned executing Court was moved for execution of said decree and when execution proceedings were on the say, the same was dismissed as withdrawn upon the statement of mother of appellant/decree holder duo to compromise. Later on, due to failure of compromise, appellant/decree holder moved application for restoration of execution on 03.06.2015 which was dismissed on 15.02.2016 and again on 12.03.2016 learned Executing Court was moved for execution of decree which was dismissed vide impugned order dated 02.05.2016 when objection petition filed by respondent/judgment-debtor was accepted.

7. This Court has perused the record thoroughly and it has surfaced that judgment and decree dated 03.05.2014 passed in favour of appellant/decree holder is still existing without any challenge and it is not denied that during subsistence of valid decree, execution proceedings cannot be denied. It is cardinal principle of law that when law requires a certain act to be done in a certain manner and way then it should be done in that manner or way or should not be done at all, respondent/ judgment-debtor despite approaching proper forum, has moved objections petition which cannot sustain with the grounds alleged therein before learned executing Court.

8. The epitome of above discussion is that during subsistence of valid judgment and decree and without setting it aside, in due process of law, execution proceedings cannot be ended, therefore, appeal of appellant/decree holder is hereby accepted and impugned order is hereby set-aside. Execution proceedings are deemed to be pending before learned executing Court, and learned executing Court is directed to proceed with the execution petition in accordance with law, regarding the execution of judgment and decree dated 03.05.2014. The respondent/judgment debtor may approach the concerned forum to set aside judgment and decree as per law if so advised, Parties are directed to appear before the learned Executing Court on 20.10.2016…….”

6-A. Record shows that on 29.11.2014, the parties got recorded their respective statements before learned Judge Family Court to the effect that Respondent No. 2 started living with petitioner owing to compromise between the parties and they were not willing to pursue their cases. Resultantly execution petition as well as application, seeking setting aside of ex-parte decree was ordered to be dismissed as withdrawn. It is no where mentioned in the said order or in the statements that the decree would not hold the field. Neither it was set-aside, nor modified as per alleged settlement. Thus, Respondent No. 2 could not have been estopped to get execution of a valid lawful decree as the decree holder has the right to get it executed within the contemplation of provisions of law.

7. The matter pertains to maintenance allowance of minor as well, therefore, petitioner cannot hide himself behind procedural

technicalities. Petitioner, being a father, is under legal obligation to maintain his child. The question of payment of maintenance allowance must be addressed to its ultimate conclusion. Thus, impugned order has rightly been passed after appreciating the facts and circumstances of the case. So far as the plea that Respondent No. 3 is not entitled to get maintenance allowance for the period when she resided with petitioner after compromise, shall be considered by learned Executing Court at the time of calculating arrears of the maintenance allowance.

8.  In view of the above intant petition is dismissed, with no order to costs.

(MMR)            Petition dismissed