' The brief facts are that respondent No.1 filed a suit for recovery of dowry articles or in the alternative a sum of Rs.3,63,900 as the cost of the dowry articles. The petitioner contested the suit.
In para.3 of the written statement it was specifically averred that plaintiff/respondent No.1 had taken away all the dowry articles and that the petitioner/ defendant was not in possession of any item of dowry.
2. The learned Judge Family Court framed the necessary issues. Upon the strength of evidence produced by respondent No.1 in the shape of statements of P.W.1 plaintiff as her own witness and P.W.2 along with the list of dowry articles Exh.P.1, the learned Judge Family Court decreed the suit in favour of respondent No.1 and against the petitioner with cost vide judgment and decree dated 21- 3-2000.
3. In pursuance of the said decree respondent No.1 filed execution proceeding on 25-5-2005. The petitioner resisted the execution proceedings. It was contended that the Family Court has not passed a decree for any amount; it was submitted that the entitlement to receive the alternate value of the dowry articles can only be enforced if the articles of dowry are not returned. According to the petitioner, the decree was to be executed under section 13(2) of the West Pakistan Family Courts Act, 1964 and not under the Provisions of C.P.C. On 30-4-2003 the petitioner offered to produce the decreed dowry articles in Court in the satisfaction of the decree. On 9-5-2003 the petitioner produced some dowry articles but the counsel for decree-holder as well as the decree- holder herself objected that articles produced by the petitioner were not articles of dowry which were mentioned in Exh.P.1. It was urged by the decree-holder that in such a situation the decree- holder is entitled to the value of dowry articles as claimed in the plaint and as decreed. On 28-5- 2003 the decree-holder took an Oath on the Holy Qur'an stating that the articles shown to her on 9- 5-2003 were not the articles which were given to her as dowry. Upon this statement the learned counsel for the petitioner asserted that whether or not the dowry articles produced by him were the same as given to respondent No.1 calls for recording of evidence of the parties. The learned Executing Court rejected the plea of the petitioner and ordered the auction of the attached property to satisfy the decree of the Judge Family Court. The Court Auctioneer was also appointed.
This order was challenged by the petitioner in revision which was dismissed by a learned Additional District Judge, Daska vide order, dated 18-7-2003.
4. These orders viz. 28-5-2003 passed by the Executing Court and the order, dated 18-7-2003 passed on revision are challenged through the present writ petition.
5. It is contended by the learned counsel for the petitioner that under the Family Courts Act only dowry articles can be restored by the Family Court and if the claim to the value thereof the appropriate forum would that be of the civil Court. It is further submitted that the order of the attachment and auction of immovable property of the petitioner in satisfaction of a decree for dowry was unwarranted at law. To support his contention the learned counsel placed reliance upon Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 and Mst. Nasreen v. Government of Sindh PLD 1989 Karachi 28 in support of this contention. Further relies on AIR 1959 Mysore 164 to contend that giving of an alternate remedy did not give the decree-holder an option of refusing to take the delivery of the property and of insisting upon the payment of money.
6. On the other hand, the learned counsel for the respondent submits that question of delivery of dowry articles during the execution proceedings was an afterthought as it was the case of the petitioner/defendant right from his written statement that the plaintiff/respondent No.1 has herself removed all the dowry articles and that he was not in possession of any items of dowry. It is contended that the decree that was passed by the Judge Family Court had direct nexus with the prayer made by the plaintiff/respondent No.1 in her plaint. Although the decree was in respect of dowry articles but as the said dowry articles as mentioned in Exh.P.1 were admittedly not in possession of the petitioner, Respondent No.1 could validly and lawfully insist upon the alternative decree for value of the same. The learned counsel for the respondent has placed reliance upon Muhammad Akram v. Mst. Shahida Parveen PLD 2004 Lah. 249 in support of his contention.
7. Arguments have been heard and record perused.
8. There is no force in the submission made by the learned counsel for the petitioner that it is only the dowry articles which can be recovered by a decree-holder and not its value as decreed. The reliance upon the case of Mst. Mehbooba Supra is not apt. In fact the dictum of the Honourable Supreme Court in the cited case affirms the proposition that a decree-holder can insist upon the value of the dowry articles if the dowry articles themselves cannot be restored. The reliance upon AIR 1959 Mysore 164 shall not advance the case of the petitioner. The precondition for obliging the decree-holder to seek the recovery of the movable property itself and not its value is that movable property should be available to be restored to the decree-holder.
9. In the present case it is admitted on the record that the original dowry articles were not in possession of the judgment-debtor and that his attempt to replace the same would amount to re- opening the case as the question regarding the quality and condition of the replaced dowry articles would always be open to question. It is in these circumstances, that where the petitioner had himself denied to be in possession of the dowry articles in his written statement, it was incumbent upon the Executing Court to straightaway execute the decree for money as alternatively decreed by the Judge Family Court. The reliance placed upon the case of Muhammad Akram PLD 2004 Lahore 249 Supra by the learned counsel for respondent No.1 is appropriate and also applies to the circumstances of the instant case.