P L D 2023 Balochistan 51
Before Iqbal Ahmed Kasi, J
NIAZ MUHAMMAD (NAZAK KHAN) ---Petitioner
Versus
BIBI KHATIMA and another ---Respondents
Civil Revision No. 118 of 2022, decided on 3rd October, 2022.
(a) Family Courts Act (XXXV of 1964) ---
----S. 5, Sched. ---Maintenance of children and grandchildren---Grandfather, responsibility
of---Scope ---Family suit was decreed ex -parte against father/respondent ---During execution
proceeding, service was also not effected on father/respondent ---Executing court through the
impugned order directed the petitioner being grandfather to deposit the maintenance in the
CCD account ---Objection petition of the petitioner/grandfather was overruled by the
Executing court and Appellate court also dismissed the appeal ---Validity ---Petitioner/
grandfather was neither a party in the suit nor in the execution proceedings ---From the bare
perusal of principles embodied in Para 370 of Principles of Muhammadan Law, it was crystal clear that if the father and mother was alive, the grandfather could not be held responsible for
maintenance of his grandchildren and unless it was first determined that he was in easy
circumstances ---In order to determine that grandfather was in a position to maintain his
grandchildren, it was incumbe nt upon the Family Court to first adjudicate and determine this
fact, which could not be done unless he was a party to the suit, having a fair opportunity to
explain his status and position---Orders impugned were set aside being not maintainable, in circum stances ---Civil revision petition, was allowed and the matter was remanded to the
Executing Court to entertain the objection of the petitioner, providing him opportunity of hearing and producing evidence, and thereafter, to decide the same in accordance wi th law.
(b) Civil Procedure Code (V of 1908) ---
----S. 51 & O.XXI, R.10---Execution of decree ---Power of Executing Court ---Scope ---
Executing Court cannot go beyond the decree ---No decree can be executed against a person
who is not a part to the proceedings.
Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481 ref.
(c) Family Courts Act (XXXV of 1964)---
----S. 13 ---Enforcement of decree---Family court is to adopt its own modes to execute its
decree.
Naseer Ahmed and Saifullah Durrani fo r Petitioner.
Jahanzaib Khan for Respondents.
Date of hearing: 20th September, 2022.
JUDGMENT
IQBAL AHMED KASI, J. ---Through this petition, the petitioner has challenged the
validity of the orders dated 22.09.2021 and 03.11.2021 ("the impugned orders") passed by
the Family Judge -IV, Quetta ("the trial Court"), and judgment dated 09.03.2022 ("the
impugned judgment") passed by the Additional District Judge -V, Quetta ("lower appellate
Court").
2. Brief facts of the case are that the respondent No.1/plaintif f
filed a family suit for dissolution of marriage on the basis of Khula , recovery of dower
amount, dower articles and maintenance, against the respondent No.2, whereby, the suit of
the respondent No.1/plaintiff was ex- parte decreed, vide judgment dated 22.12.2020, which
was then put into an execution, service was not served upon respondent No.2 and meanwhile, the executing Court through the impugned order dated 22.09.2021, directed the petitioner (being grandfather) to deposit the maintenance of the minor before 14th of every succeeding month, in the CCD account and the challa n/receipt to be produced before the executing
Court.
3. The petitioner approached the executing Court and filed objection petition under
Section 47 and Order XXI, Rule 58 of C.P.C. The executing Court after hearing the parties, vide impugned order dated 03.11.2021, overruled the objection of the petitioner, which was
assailed by him before the lower appellate Court, by filing an appeal under Section 104, C.P.C. The lower appellate Court, after hearing the parties, vide impugned judgment dated 09.03.2022, di smissed the appeal and upheld the impugned orders of the executing Court,
hence this petition.
4. Learned counsel for the petitioner contended that the petitioner was not party in that
suit and the trial Court wrongly passed an order against him. He furthe r contended that in the
year 2014, the petitioner has partitioned his entire assets among all his legal heirs and handed over the due share to each of his legal heir, including respondent No.2. The respondent No.2 is neither residing with the petitioner, n or his whereabouts are known to him. He further
contended that the executing Court failed to provide opportunity of fair trial, as such, the impugned orders are liable to be set aside.
5. On other other hand learned counsel for respondent No.1 contended that the lower
Courts below have passed a speaking as well as reasonable orders, on legal grounds and there is no occasion to interfere in the impugned orders, as such, the instant petition is liable to be dismissed.
6. I have heard the learned counsel for t he parties and perused the available record. It is
an admitted feature of the case that the petitioner was neither party in the suit nor in the
execution proceedings. The petitioner namely Niaz Muhammad (Nazik Khan) is grandfather
of minor, whereas, respondent No.2 is the father of minor. The respondent No.1/plaintiff filed a suit for maintenance against the father i.e. respondent No.2 before the learned Judge, Family Court -IV, Quetta, which was decreed ex -parte, vide judgment dated 22.12.2020, and
on execu tion proceedings, the respondent No.2 Muhammad Usman was noticed, which was
not served. The trial Court on the application of respondent No.1 issued arrest warrants of
petitioner (grandfather). The petitioner filed objection petition against the said order , which
was dismissed by the executing Court. I, am of the considered view that the matter in issue
hinges upon three components which are as under:
i) Implication of Para 370 of Muhammadan Law by D.F. Mulla's;
ii) Execution of a decree against a person, w ho is not a party in the suit; and
iii) Modes of Execution by Family Court.
Both the Courts below, while holding the petitioner (grandfather) liable to pay the maintenance to minors have invoked Para 370 of Muhammadan Law. In order to properly evaluate the legality and validity of the orders under challenge, it is necessary to first
examine the relevant provision. For the sake of convenience and reference Para 30 of Principles of Muhammadan Law by D.F. Mulla is reproduced below:
"370. Maintenance of childr en and grandchildren.---(1) A father is bound to maintain
his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the
obligation of maintaining them. But the father is not bound to maintain a child who is capable of being main tained out of his or her own property.
(2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to
maintain the children lies on the grandfather, provided he is in easy circumstances."
From the bare perusal of principles embodied in Para 370 ibid it is crystal clear that primarily father is bound to maintain h is children. In the case of son until he or they attain the age of
puberty and if there are daughter or daughters till their marriage. In case the father is poor and incapable of earning by his own labour it is the mother, if she is in easy circumstances, to maintain her children. The liability of grandfather starts when the father is poor and infirm and the mother is also not in a position to provide maintenance to her children but the liability of grandfather to maintain his grandchildren, is also depende nt upon the fact that he
is in easy circumstances. Thus, in my humble view, if the father and mother are alive, the grandfather cannot be held responsible for maintenance of his grandchildren unless it is first determined that he is in easy circumstances. In order to determine that grandfather is in a position to maintain his grandchildren it is incumbent upon the Family Court to first adjudicate and determine this fact, which cannot be done unless he is a party to the suit, having a fair opportunity to explain his status and position. Reliance in this respect is placed
to the case of Ghulam Nabi v. Muhammad Asghar and others PLD 1991 SC 543, wherein,
the Hon'ble Supreme Court has held as under:
"The question posed was: whether, in presence of the father the grandparents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grandchildren as compared to the father's duty to maintain his own children learned counsel without hesitation admitted that the priority- wise it would be the duty of the
father."
7. There is yet another important aspect which pertains to
the execution of decree against a person who is not a party to the suit. Law is settled on
this point that no decree can be executed against a person who is not a part to the
proceedings. Even otherwise, the executing Court cannot go beyond the decree. The Hon'ble Supreme Court, in the case of Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481, dealing with such proposition, has held as under:
"Civil Procedure Code (V of 1908) ---
----S.51, O. XXI, R.10--- Execution of decree--- Powers of Executing Court ---Scope ---
Executing court, under no circumstances, could go beyond the decree ---Executing
court could not creatively interpret a decree which had attained finality before the Supreme Court to nullify its effect."
8. While adverting to the powers of Family Court to execute its own decree, it is
observed that Section 13 of the West Pakistan Family Courts Act, 1964 prescribes the modes, which are to be adopted by the Family Court for execution of its own decree.
The above discussion leads me to an irresistible conclusion that impugned orders are
not maintainable in the eyes of law, as such, the instant Civil Revision Petition, is allowed, the orders impugned, passed by the Courts below are set aide, and the matter is remanded
back to the executing Court to entertain the objection of the petitioner, provide him opportunity of hearing and producing evidence, and thereafter, decide the same in accordance with law.
IH/54/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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