Monday, 27 July 2015

Powers of Court in Execution Proceedings

PLJ 2015 Lahore 774
Present: Ali Baqar Najafi, J.
versus
W.P. No. 15567 of 2014, decided on 22.4.2015.
----S. 52--Land Revenue Act, (XXV of 1967), S. 80--Constitution of Pakistan, 1973, Art. 199--Execution proceedings--Responsibility of attorney and surety with judgment debtor is coextensive--Execution of decree can be effected by procedure for recovery of arrears of land revenue--Under Section 52 of C.P.C. executing court can adopt five measures including arrest, detention and prison--Judgment debtor, his attorney as well as his surety cannot frustrate execution of decree for reason that Family Court’s proceedings are special in nature, therefore, executing court will try and put in all efforts to execute decree--Courts are well aware of their powers to ensure execution of their judgments and decrees which are not passed in vacuum and have full support of law and procedure of country.
                                                                                                                        [P. 776] A & C
----S. 13(3)--Execution proceedings--Responsibility of attorney and surety with judgment debtor--Procedure for recovery--Under Section 13(3) of Family Courts Act, 1964 money decree can be executed through process for recovery of arrears of land revenue.
                                                                                                                        [P. 776] B
Mr. Abdul Hameed Rana, Advocate for Petitioners.
Mian Waqas-ul-HaqAdvocate for Respondents No. 3, 4 & 5.
Sardar Faiz Rasul Khan Jalbani, Advocate/amicus curiae assisted by Mr. UsmanNawab, Advocate for Respondents.
Date of hearing: 22.4.2015.
Order
Through this Constitutional petition the petitioners seek setting aside of order dated 02.01.2014 passed by the learned Executing Court/Civil Judge 1st Class and order dated 26.05.2014 passed by the learned Additional District Judge whereby Petitioner No. 1, the brother of judgment debtor, Farooq Ahmed was kept in jail for one year i.e. 06.09.2013 who was to be released on the payment of the amount or after the expiry of the said period.
2.  Brief facts giving rise to the filing of this writ petition are that a decree dated 26.09.2011 was passed against Qamar-uz-Zaman and during the execution proceedings his attorney/brother (Farooq Ahmed) was sent to the civil prison but released on the payment of
Rs. 1,00,000/- and by submitting the surety bond of one Mehboob Ahmed/Petitioner No. 2 to the extent of remaining amount by Farooq Ahmed the general attorney. Meanwhile, Qamar-uz-Zaman returned back from abroad and sent a notice to his brother to cancel the power of attorney by claiming that he has nothing to do with the judgment debtor and also filed an application for his release before the learned Executing Court. The said application was contested on the ground that the balance amount of Rs. 1,40,000/- is his responsibility. Another application for release of the surety filed by Farooq Ahmad/Petitioner No. 1 which was also contested. On 02.01.2014 the learned Executing Court dismissed the application on the ground that since the attorney has been pursuing the case on behalf of judgment debtor throughout and resultantly the decree for the maintenance allowance was passed in favour of the minor i.e. the real son of the judgment debtor and that since he is the real brother of the judgment debtor who paid Rs.1,00,000/- out of total amount of Rs.4,00,000/- with an undertaking to give Rs. 1,00,000/- on the next date of hearing and, therefore, on account of failure the judgment debtor and the attorney have to face legal consequences. The other application for absolving MehboobAhmed/Petitioner No. 2 as surety was also dismissed. The appeal also met the same fate. Hence this writ petition.
3.  Arguments heard. File perused.
4.  Admittedly, Farooq Ahmed/Petitioner No. 1 is the attorney of Qamar-uz-Zaman (Respondent No. 6), his real brother, who has been defending him throughout in a suit for recovery of maintenance allowance by the minor before the Family Court. It is also not denied that Mehboob Ahmed/Petitioner No. 2 is the surety of the attorney, namely, Farooq Ahmed/Petitioner No. 1. It is also not denied that some amount was paid and as a consequence the judgment-debtor was released. The responsibility of the attorney and surety with the judgment-debtor is coextensive and the execution of a decree can be effected by following procedure for recovery of the arrears of land revenue. Under Section 80 of the Land Revenue Act, nine modes have been provided to effect the recovery of such arrears, namely, service of notice, arrest and detention, distress and sale of movable property, by transfer of the holding, attachment of property, by annulment, by sale of holding and by proceedings against other immovable property of the defaulter. Under section 52 of the C.P.C the Executing Court can adopt five measures including arrest, detention and prison. Under Section 13(3) of the Family Courts Act, 1964 the money decree can be executed through the process for recovery of the arrears of land revenue. This special procedure for the recovery of the arrears prescribed under Section 13 of the above Act has been approved in Syed Muhammad versus Mst.Zeenat and others (PLD 2001 SC 128) upheld in Muhammad Sadiq versus Dr. Sabria Sultana (2002 SCMR 1950). The liability of the judgment debtor has been described and upheld by the Hon’ble Supreme Court while interpreting Section 13 of the Family Courts Act in Muhammad Pervez versus Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352). The liability of the surety to receive the decretal amount was made voluntarily and was also acted upon.
5.  Scanning the above case law I am convinced to hold that the judgment debtor, his attorney as well as his surety cannot frustrate the execution of the decree for the reason that the Family Court’s proceedings are special in nature, therefore, the Executing Court will try and put in all efforts to execute the decree. In my humble opinion, the Courts are well aware of their powers to ensure the execution of their judgments and decrees which are not passed in vacuum and have full support of the law and the procedure of the country.

6.  For the above stated reasons, this petition has been found meritless and is, therefore, dismissed.


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