' M. JAVED BUTTAR, J.---This appeal, by leave, is directed against judgment, dated 4-3-2008, whereby Writ Petition No,310 of 2006, instituted by the appellant was disposed of by an Hon. Judge in Chambers of Lahore High Court with a slight modification in the instalments of arrears of maintenance allowance ordered by the executing Court.
2. The relevant facts are that respondents Nos.2 and 3 are daughters of the appellant. They filed a suit for the recovery of maintenance allowance against him on 4-3-2002. The suit was contested. It was decreed by the Hon. Judge, Family Court on 24-11-2003. The appellant was directed to pay Rs,3000 per month to each of the minors (respondents Nos.2 and 3) with effect from 4-3-2002 i,e, date of institution of the suit with 20% annual increase. The appellant's appeal as well as the appeal of minors were dismissed by the Hon. Additional District Judge, Lahore on 6-2-2004. Writ Petition No,3986 of 2004 instituted by the appellant was dismissed by Lahore High Court on 18-12-2004. On 11-3-2005 the respondents/minors filed execution petition. The appellant vide his application filed on 3-10-2005 requested the executing Court for the payment of arrears of the maintenance allowance in easy instalments. The executing Court vide its order, dated 18-10-2005, while allowing the execution petition, permitted the appellant to pay the arrears of maintenance allowance in instalments of Rs,12000 per month. This order of executing Court of allowing the appellant to pay arrears of maintenance allowance in instalments was assailed by the respondents/minors through a Revision Petition. The Hon. Additional District Judge, Lahore vide his order, dated 26-11-2005 while allowing the revision petition, directed the payment of arrears in instalments of Rs,50,000 per month. Being aggrieved thereby, the appellant instituted Writ Petition No,310 of 2006 which was disposed of vide the impugned judgment passed by an Hon. Judge in Chambers of Lahore High Court who. While repelling the argument of the learned counsel for the appellant that 20% annual increase ordered by the Family Court was without jurisdiction on the ground that the decree passed by the Family Court on 24-11-2003 had attained finality up to the level of High Court in the previous round of litigation when Writ Petition No,3986. Of 2004 instituted by the appellant was dismissed on 18-12-2004, granted partial relief to the appellant by directing appellant to pay or deposit the maintenance allowance for both the minors at the rate as decreed by the Family Court from 1st of April, 2008 and additionally deposit a sum of Rs,15,000 per month to be adjusted against the arrears and in case the appellant failed to do so, the executing Court was to take steps to recover the entire amount. Writ Petition was accordingly disposed of. The appellant, therefore, came to this Court through Civil Petition No, 309-L of 2008 in which leave to appeal was granted by this Court on 1-8-2008.
3. We have heard learned Sr. Advocate Supreme Court for the appellant, learned Sr. Advocate Supreme Court for respondents Nos. 2 and 3 and have also seen the available record with their able assistance.
4. Mr. Amir Alam Khan, learned Sr. Advocate Supreme Court for the appellant has informed the Court that the appellant is paying the maintenance allowance to the minors through their mother at the rate of Rs,3,000 per month per child as decreed by the Family Court and cannot legally object to the award of the maintenance allowance by the Family Court at the above rate from date of the institution of the suit i,e, 4-3-2002 as the same has become final but the appellant is urging the non-executability of the second part of the decree passed by the Family Court whereby the Family Court ordered the 20% annual increase: In this regard it has been submitted that this increase was never asked for in the plaint, it was ordered by the Hon. Family Judge on his own, such an increase is neither just nor reasonable or fair, and the total maintenance allowance payable by the appellant with the annual increase of 20% as decreed by the Family Court at the end would come, to Rs,6.88 crores. The learned counsel in this regard has referred to a Chart and a diagram prepared by him which are available at pages 90 and 91 of the paper book of this appeal. It is thus argued that, therefore, the maintenance decree as it is, is incapable of execution and executing Court can declare the second part of the decree which is being objected to by the appellant, as inexecutable and this will not amount to going behind the decree. It has further been submitted that questions regarding the decree can be opened in execution proceedings and aggrieved party can show that the decree is void or incapable of execution and it can be assailed in the executing Court also on the ground that the decree has been passed against a provision of law. It has also been submitted that the concept of partial execution and the doctrine of severability is not something which is foreign to the Courts of this country. It has next been submitted that taking into account the rising rate of inflation while granting the maintenance allowance to the minors by the Family Courts, is merely a speculation because tomorrow the situation may reverse and in any case the minors can always approach the Family Court again, under the law for the enhancement of the rate of maintenance allowance, in case of any special circumstance. In the end, the learned Senior Advocate Supreme Court for the appellant submitted that the appellant is a patient of chronic' disease i,e, schizophrenia, he is suffering from 3rd degree madness and has lucid intervals and because of his illness he is employed on a temporary job and is earning merely Rs,20,000 per month. The learned counsel in this regard, has referred to some medical bills of the appellant.
5. Learned counsel while making his submissions has also placed his reliance on an order dated 28-2-2007 passed by this Court in Civil Petition No,76-L of 2007 where-under the petition was converted into an appeal and partly allowed. The annual increase of 25% over and above the maintenance allowance of Rs,3,000 per month granted by the Family Court vide order, dated 24-11- 2003, affirmed by the Additional District Judge and the High Court, was set aside and the decree of the Family Court was maintained only to the extent of monthly maintenance allowance of Rs,3,000.
Further reliance has been placed on Haji Hafiz Abdul Shakoor Khan v. Administrator, Municipal Committee, Multan (PLD 1951 Lah. 32), Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), Fakir Abdullah and others v. Government of Sindh through Secretary to Government Sindh Secretariat, Karachi and others (PLD 2001 SC 131) and Messrs A. Z Company v. Messrs S. Maula Bukhsh Muhammad Bashir (PLD 1965 SC 505).
In the case of Haji Hafiz Abdul Shakoor Khan (supra), it was held that the executing Court cannot go behind decree but may declare a decree to be incapable of execution and in such cases the Court is not going behind the decree. In the case of Islamic Republic of Pakistan (supra), it was held by this Court that questions relating to the executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. In the case of Fakir Abdullah and others (supra), it was held by this Court that where the Court is satisfied that decree is nullity in the eyes of law, or the same has been passed by Court having no jurisdiction or the rights of the decree-holder would not be infringed if the decree is refused to be executed or the decree has been passed in violation of any provision of law, the executing Court under the provisions of section 47, C.P.C. Can question executability of decree. In the case of Messrs A.Z. Company (supra), it was held by this Court that the portion of arbitration award relating to such interest which was not awardable, was separable from rest of award and could be struck off as mere surplusage and setting aside of the whole of the award was declined in circumstances of the case.
6. On the other hand, Mr. Gulzarin Kiani, learned Senior Advocate Supreme Court for the respondents/minors, while vehemently opposing the appeal, has submitted that he does not known about the physical or mental condition of the appellant but according to his, instructions, the appellant is earning Rs,50,000 per month as salary from a job, that the part of the decree passed by the Family Court which has been assailed by the appellant before this Court i,e, 20% annual increase in the maintenance allowance was never assailed by the appellant either before the appellate Court which dismissed the appeals of the appellant as well as of the minors on 6-2- 2004 or before the High Court which dismissed Writ Petition No, 3986 of 2004 on 18-12-2004 instituted by the appellant and therefore, the said decree has become final and is a past and closed transaction. It has further, been submitted that similarly such an issue was not raised before the executing Court at the time when the appellant filed an application before it on 3-10-2005 in which the appellant merely prayed for the payment of arrears of maintenance allowance in instalments and executing Court while allowing the execution petition on 18-10-2005 also allowed the said application filed by the appellant and permitted the appellant to pay the arrears in instalments of Rs:12,000 per month and the appellant did not assail the said order, dated 18-10- 2005 which was assailed only by the private respondents/minors through a revision petition which was allowed by the revisional Court on 26-11-2005 and for the first time this issue was raised by the appellant only in Writ Petition No,310 of 2006 which resulted in the impugned judgment and thus the appellant never raised this issue either in the main case or before the executing Court, hence, the Hon. Judge in chambers of Lahore High Court while passing the impugned judgment correctly and lawfully refused to entertain the objection regarding 20% increase being raised for the first time in the proceedings of the writ petition. Learned counsel also submitted that the order/judgment passed by this Court on 28-2-2007 in Civil Petition No,76-L/2007, which has been relied upon by the learned counsel for the appellant, is distinguishable because in the said case order of annual increase of 25% passed by the Family Court was set aside by this Court in the main case and not in any subsequent proceedings or in any executing proceedings whereas in the present case, the issue is being raised in the subsequent proceeding arising out of execution proceedings and not in the main case in which the decree passed by the Family Court had become final upto the level of the High Court and thereafter it was never assailed by the appellant before this Court. In this regard he has placed his reliance on Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur, v. Industrial Tribunal, Rajasthan, Jaipur and another (AIR 1967 SC 1182).
7. It has further been submitted that it cannot be said that the decree passed by the trial Court is void and, therefore, the executing Court cannot go beyond the decree. It may also be mentioned here, that the brother of mother of respondents Nos. 2 and 3, (the minors) who was also present in Court, stood up during the course of arguments of the learned counsel for respondents Nos.2 and 3 and informed the Court that although the mother of minors is a Dental Surgeon but is currently unemployed and the school fees of the minors are more than the rate of maintenance allowance granted by the family Court and if the order of 20% annual increase is interfered with, schooling of the minors is likely to suffer.
8. Before close of the arguments, the learned Senior Advocate Supreme Court for the appellant, under the instructions of the appellant has submitted that for the sake of entering into a compromise the appellant is ready to offer 5% annual increase in the maintenance allowance granted by the Family Court which is not acceptable to the respondents' side which is ready to enter into a compromise only on the 15% annual increase. We may also mention here, that when asked that what was the basis for the Family Court for ordering 20% annual increase in the maintenance allowance granted by it, the learned Senior Advocate Supreme Court for the respondents Nos, 2 and 3/minors was' not able to answer this query because the Family Court neither had any basis before it to order such an increase nor gave any reasons for passing such an order.
9. We have given our anxious consideration to the entire facts and circumstances of the case. The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. It has to make an inquiry in this regard. It cannot act arbitrarily or whimsically. Furthermore, at the same time, the unjust enrichment of the minors cannot be permitted at the cost of the father. In the present case, there is nothing on the record to show that the appellant is a rich man and can afford paying at the end, Rs,6.88 crores to the minors towards their maintenance. We have also noticed that the Family Court had no basis before it and had no criteria for awarding 20% annual inc7.;ase in the maintenance allowance granted by it and it gave no reasons for ordering such an increase. It thus acted arbitrarily, illegally and whimsically in awarding such an exorbitant annual increase in the maintenance allowance. There was no justification for the annual increase of maintenance allowance at the rate of 20%. It was not a reasonable exercise of authority by the Family Court. It is well-settled that the judicial officers are required to act justly and fairly and reasonably in discharge of judicial functions. The argument that school fees of the minors are more than the rate of maintenance allowance granted by the Family Court, therefore, the annual increase granted by the Family Court should-not be interfered with, has also, no force. The mother, if she so desires or can afford, may put the children in expensive schools but the father's obligation to maintain the minors is only to the extent of his status and financial condition and the Family Court must keep these factors in mind while granting maintenance allowance.
10. There is no cavil to the proposition that the executing Court cannot go behind the decree but at the same time the executing Court can look into the questions whether the decree or part thereof is executable or inexecutable and if for any reason the decree has become inexecutable, the executing Court is empowered to declare so and if a part of the decree is inexecutable and that part is severable from other part(s) of the decree then the executing Court is empowered to refuse the execution of the inexecutable par, of the decree and may proceed with the execution of the rest of the decree. In the present case, there is nothing on the record to show that the appellant has the means to pay the increase as ordered by trial Court. As for the future prospects, the minors can always approach the Family Court for the increase in the maintenance allowance due to any change in the circumstances. The impugned judgments of the High Court and the Courts below are, therefore, not sustainable to the extent of annual increase of 20% in the maintenance allowance of the respondent's minors who shall be entitled only to the 5% annual increase in such an allowance as offered by learned counsel for the appellant, which in our opinion will meet the ends of justice.
' In view of the above mentioned, this appeal is partly allowed. The annual increase of 20% over and above the maintenance allowance of Rs,3000 per month per child ordered by the Family Court affirmed by the appellate Court and High Court is reduced to 5%annual increase with an observation that minors can always approach the Family Court for, the increase in their maintenance allowance due to any change in any circumstances. There are, however, no orders as to costs.