In order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908.Following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:- 1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, „Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] 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.‟ 2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard. 3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law. ................ .. When after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and sub-section 4 of the said Section is relevantSection 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-eShahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 & 11 shall not apply to the proceedings before any Family Court. Family Courts, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that “Nikah” is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.
In order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908.
Following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, „Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] 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.‟
2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.
3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.
................ ..
When after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and sub-section 4 of the said Section is relevantSection 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-eShahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 & 11 shall not apply to the proceedings before any Family Court.
Family Courts, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path;
The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that “Nikah” is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.
IN THE ORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Transfer Application No. 71691of 2021
Sawera Ikram Versus Amir Naveed
S. No. of order/ Proceeding Date of order/ Proceeding Order with signature of Judge, and that of parties or counsel, where necessary
18.11.2021 Mr. Moazzam Saleem, Advocate for the petitioner
Mr. Muhammad Mahmood Chaudhry, Advocate as
amicus curiae
Order
This order will dispose of the captioned transfer application as well as following transfer applications seeking transfer of execution petitions:-
1. T.A.No.68040 of 2021 titled Mst. Saba Nasir v. Muhammad Uzman
2. T.A.No.68728 of 2021 titled Muafia v. Zahid Mehmood, etc.
3. T.A.No. 68832 of 2021 titled Sumera Ameen, etc. v. Faryad Ali
4. T.A.No.69289 of 2021 titled Iram Farhan etc. v. Raja Farhan Mehmood
5. T.A.No.68970 of 2021 titled Mst. Rehana Kausar v. Mudasir Hussain
6. T.A.No.68740 of 2021 titled Iram Shehzadi v. Shabbih Haider
7. T.A.No.67912 of 2021 titled Syeda Umm-eLaila, etc. v. Syed Qamar Abbas Shah, etc.
8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v. M. Rashid
9. T.A.No.70294 of 2021 titled Khalida Parveen
v. Adnan Bilal Sial
10. T.A.No.67734 of 2021 title Mst. Maryum Yousaf v. Qaiser Mehmood
11. T.A.No.59167 of 2021 titled Mst. Fozia Amjad
v. Amjad Farooq
12. T.A.No.69553 of 2021 titled Mst. Nadaas Bibi, etc. v. Ghulam Rasool
13. T.A.No.56094 of 2021 titled Nusrat Bibi v. Yasir Mehmood
14. T.A.No.69898 of 2021 titled Mst. Tayyaba Nafees, etc. v. Tayyab Ali
15. T.A.No.67606 of 2021 titled Pro. Dr. Umbreen Javed v. Noshad Mahmood
16. T.A.No.65187 of 2021 titled Ayesha Bibi, etc.
v. Ajmal Shahzad, etc.
17. T.A.No.61499 of 2021 titled Azra Parveen v.
M. Shafique
18. T.A.No.59746 of 2021 titled Naveera Irshad v. M. Abdullah
19. T.A.No.59362 of 2021 titled Mst. Noor Jahan
v. Saif Ullah
20. T.A.No.57711 of 2021 titled Asma Liaqat, etc.
v. Mubashir Raheel Riaz
21. T.A.No.55971 of 2021 titled Asma Yaqoob v. Jamshed Ali
22. T.A.No.57230 of 2021 titled Fouzia Yasmeen, etc. v. Khalid Mahmood
23. T.A.No.68994 of 2021 titled Syeda Ayesha Shakeel v. Syed Kamran Khalid
24. T.A.No.58421 of 2021 titled Mst. Anam Bibi, etc. v. Muhammad Waqas Adil
25. T.A.No.65274 of 2021 titled Khalida Usman v. Muhammad Shahzad
26. T.A.No.68227 of 2021 titled Mst. Rehmat Bibi, etc. v. Muhammad Arshad Zaman
27. T.A.No.69863 of 2021 titled Tayyaba Manzoor
v. Nasir Ali
28. T.A.No.69908 of 2021 titled Mehvish Bibi v. Atta Ullah
29. T.A.No.42451 of 2021 titled Mst. Shamim Akhtar v. Muhammad Suleman
30. T.A.No.61325 of 2021 titled Tayaba Afzal v. Farrukh Yasin
31. T.A.No.69429 of 2021 titled Mugheesa Munir
v. Muhammad Rizwan
32. T.A.No.65380 of 2021 titled Sumaira Arif v. Shahbaz Ali
33. T.A.No.59839 of 2021 titled Shumyla Mansha
v. Khurram Shahzad
34. T.A.No.67789 of 2021 titled Mst. Samina Bibi
v. Muhammad Bukhsh
35. T.A.No.69567 of 2021 titled Nazish Nazir v. Muhammad Bilal, etc.
36. T.A.No.55531 of 2021 titled Pathani Bibi v. Muhammad Ikram
37. T.A.No.67640 of 2021 titled Iqra v. Muhammad Nadeem
38. T.A.No.54307 of 2021 titled Amna Yasin, etc.
v. Muhammad Kalim
39. T.A.No.60947 of 2021 titled Amna Nasir, etc.
v. Muhammad Usman Baig
40. T.A.No.69005 of 2021 titled Afshan Rani, etc.
v. Khurram Shahzad
41. T.A.No.69829 of 2021 titled Mst. Muqadas Bibi v. Asad Iqbal
42. T.A.No.59170 of 2021 titled Mst. Shazia Parveen v. M. Younas
43. T.A.No.70461 of 2021 titled Mst. Rukhsana Aslam, etc. v. Khalid Mehmood
44. T.A.No.65771 of 2021 titled Mst. Ruqia Naz, etc. v. Shakeel Ahmad
45. T.A.No.71406 of 2021 titled Sumera Bibi, etc.
v. Muhammad Saleem
46. T.A.No.70924 of 2021 titled Mst. Nirma Khalid
v. Muhammad Amir Shahzad
47. T.A.No.71438 of 2021 titled Naeema, etc. v. Javaid Iqbal
48. T.A.No.71416 of 2021 titled Khalida Parveen etc. v. Muhammad Arshad
49. T.A.No.66214 of 2021 titled Kaneez Fatima v. Iftikhar Ahmad
50. T.A.No.64567 of 2021 titled Shafqat Parveen, etc. v. Amjad Hussain
2. Heard.
3. Preamble of the Family Courts Act, 1964 elaborates the purpose of promulgation of the enactment, which reads:-
„Whereas it is expedient to make provision, for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.‟
Meaning thereby the Family Courts, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (PLJ 2010 SC 891). The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that “Nikah” is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.
4. Having said above, now when after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and sub-section 4 of the said Section is relevant which reads:-
„The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.‟ Section 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-eShahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 & 11 shall not apply to the proceedings before any Family Court. The bar contained in this section has been manifestly addressed by the Apex Court of the country in Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), wherein it has invariably been held:-
„Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that “Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decreeholder.” This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrears of land revenue is by selling the immovable property of the defaulter.‟ (Underline for emphasis)
Therefore, in order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908, which enumerates:- „Precepts.—(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.
Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.‟
It is not meant that the provisions of the Code of Civil
Procedure, 1908 are going to be followed in stricto sensu rather the procedure provided therein is to be adhered to by the Family Court because the Family Court is governed by the general principle of equity, justice and fair-play. In addition to this, if the judgment debtor is employed in any department his salary can also be ordered to be attached by the concerned quarters through proper channel and he can be forced to satisfy the decree; thus, when the main purpose of the enactment is to protect the convenience of the weaker and vulnerable segments of the society i.e. women and children, the same cannot be achieved by transferring the decree to a place where they (women and children) do not reside because they will suffer the agony of travelling from a place to the other in order to pursue the proceedings in execution petition before the transferee Court and it would also endanger their lives at the hands of judgment-debtor because of obtaining a decree against him (judgment-debtor). When we go through the ratio of judgment Amjad Iqbal (supra) it comes on surface that the Executing Court of a decree passed by a Family Court may adopt every method in order to get the decree satisfied including attachment of property (movable or immovable), selling the property, attachment of the salary and ordering for arrest of the judgment debtor; all these methods are not provided under the Family Courts Act, 1964 but the same are taken from the Code of Civil Procedure, 1908 as these methods are not inconsistent with the provisions of the Act, 1964 for the purpose of satisfaction of the decree because proceedings of the Family Court, whether as a Trial Court or an executing Court are governed by the general principle of equity, justice and fair-play, as has been held in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). In addition to this, in a judgment reported as Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), the Apex Court has invariably held:-
„Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principle of fair hearing and trial.‟
5. Pursuant to the above, when all the proceedings at trial stage are carried out at a place where the women and children reside, forcing them to get transferred the execution petition or decree to some other Court, out of District, would certainly, as stated above, cause inconvenience and troubles to them, which is not the myth and essence of the Family Courts
Act, 1964 as has been highlighted in its “Preamble”.
6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, „Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] 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.‟
2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.
3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.
7. In the light of the above, the instant petition and transfer applications, detailed supra, are hereby disposed of, accordingly.
(SHAHID BILAL HASSAN)
Judge
M.A.Hassan
Announced in open Court on ___________.
Judge
Approved for reporting.
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