MAULVI ANWARUL HAQ, J. --- This ICA proceeds against judgment dated 16.4.2009 of a learned Single Judge, in Chamber, of this Court, whereby W.P. No. 8010/08 filed by the appellants has been dismissed.
2. Learned counsel for the appellants contends that the impugned judgment fails to take note of the fact apparent, on the face of the record that the appellant were not claiming any enhancement in compensation. Their prayer, in fact, was for grant of compound interest in accordance with the mandatory statutory provision. He relies on the case of Collector of Land Acquisition, Nowshera v. Fazal Rahim and 3 others (1984 .SCMR 1043). The respondents have been served but none has turned up on their behalf despite calls. They are accordingly proceeded against ex parte.
3.. We have examined the writ petition records.
According to the contents of the writ petition, land belonging to the appellants was acquired.
Although the award was announced on 28.9.2005, the possession was taken over on 10.7.1999. In the said award (Annex-B) to the writ petition, the Land Acquisition Collector, NHA, determined the compensation payable for the land. In respect of land measuring 223 kanals, 11 marlas the possession whereof was taken over on 10.7.1999, apart from 15% compulsory acquisition charges the LAC awarded simple interest at the rate of 8% per annum from the date of taking over of the possession. Regarding the remaining land measuring 147 kanals, 19 marlas it was stated that possession had not been taken over.
4. The grievance made out by the appellants was that under the law, they are entitled to compound interest at the said rate and also they are entitled to interest qua the land measuring 147 kanals, 19 marlas as well.
5. It has been observed in the impugned judgment that the only remedy was of a reference under Section 18 of the Land Acquisition Act, 1894 and the writ petition found to be not maintainable as it has been observed that the appellants accepted the award and received the amount:
6. It is but obvious that the provisions of Section 34 of the Land Acquisition Act, 1894, as substituted by the West Pakistan Act No. III of 1969 escaped the notice of the learned Single Judge. The said provision of law lays down in mandatory terms that the Collector shall pay the amount awarded with compound interest therein at the rate of 8% per annum from the time of taking over possession until the amount has been paid or deposited. The Proviso lays down that any waiver of the said right by the land owner shall be void and he shall be entitled to the said interest notwithstanding any agreement to the contrary. In view of the said clear statutory provisions, the appellants had only prayed for a direction to the respondents to act in accordance with the said law. In fact to our mind, this was by all means a clerical error liable to be corrected by the LAC himself in terms of Section 12-A of the Land Acquisition Act, 1894. However, the prayer regarding the remaining land being disputed cannot be adjudicated upon in these proceedings.
7. The ICA is accordingly partly allowed inasmuch as the respondents are directed to pay compound interest on the amount determined by the Land Acquisition Collector in award dated 28.9.2005 (Annex-B to the writ petition) in respect of 223 kanals, 11 marlas of land at the rate of 8% per annum from 10.7.1999 to 28.9.2005. No orders as to costs.
Petition partially allowed.
20 i1 C.L.R. 544 [Rawalpindi] Present: IJAZ AHMED, J. Mst. Rehana Rehman's Versus Family Judge and others Writ Petition No. 5029 of 2010, decided on 2nd March, 2011. CONCLUSIONS
(1) Executing Court has no power to review its earlier order .
(2) Judgment-debtor has right to save his pension from attachment etc. For satisfaction of any decree or order passed by any Court because that is his repose and retreat .
(a) Execution of decree--- ---Modes---Exemption---The legislature provided the different modes for execution of a decree and also allowed the attachment of lands, houses, goods, money, bank notes, cheques, bills of exchange, bonds, sureties, debts and shares etc. For the satisfaction of the decree but it also granted exemption to certain belongings, necessary tools, the dwelling houses including the stipends, gratuity and pensions etc. (Para 10)
EXECUTION OF DECREE---(Exemption)
(b) Constitution of Pakistan (1973)- ---Art. 199---W.P. Family Courts Act, 1964---Civil Procedure Code, 1908, 0. XXI, R. 60---Pakistan Army Act, 1952, S. 171---Pension Act, 1871, S. 11---Execution of decree for recovery of maintenance---Attachment of pension of judgment-debtor/petitioner--- Mode---Validity---Decree-holder had a right to have decree executed---Judgment-debtor had a right to save his pension from attachment etc. For satisfaction of any decree or order passed by any Court because that was his repose and retreat---Impugned attachment order was set aside by High Court---Executing Court was at liberty to adopt measures permissible under law to satisfy decree in question---Writ petition was allowed accordingly.
(Para 10)
(c) Judicial record, presumption of- -Presumption of truth is attached to judicial record.
(Para 9)
(d) Review, remedy of--- ---The remedy by filing of review petition is the creation of statute, it des not vest in the Court unless provided by law.
(Para 6)
(e) Constitution of Pakistan (1973)- -Art. 199---Civil Procedure Code, 1908, 0. XXI, Rr. 11, 60-- -W.P. Family Courts Act, 1964---Execution proceedings in respect of decree passed by Judge Family Court---Executing Court recalled its earlier order and ordered release of pension of respondent-judgment-debtor---Contention was that respondent-judgment-debtor in that manner succeeded in obtaining impugned order which amounted to review---Held: Executing Court could not pass impugned order reviewing its earlier order---Even if earlier order be void altogether, the law provides a course for rectifying the wrong-- -Remedy by way of filing of review petition is the creation of the statute, it does not vest in a Court unless provided by law---Impugned order having been passed without jurisdiction was set aside by High Court---Writ petition succeeded.
(Para 6)
Key Terms:- Execution of decree.
[Pension of judgment-debtor/petitioner could not be attached in execution of decree for recovery of maintenance etc. High Court allowed writ petition to that extent].
For the Petitioner (in Writ Petitions No. 5029of 2010): Syed Zulfiqar Abbas Naqvi, Advocate.
For the Petitioner (in Writ Petitions No. 3946 of 2010): Mehmood Azam Awan and Sardar Muhammad Ishaque, Advocates.
For the Respondent No. 1 (in Writ Petition No. 3946 of 2010): Syed Zulfiqar Abbas Naqvi, Advocate.
For the Respondent No. 2 (in Writ Petition No. 5029 of 2010): Mehmood Azam Awan and Sardar Muhammad Ishaque, Advocate.
Date of hearing: 2nd March, 2011.
IJAZ AHMED, J. --- This order will dispose of the instant writ petition and Writ Petition No. 3946/2010 as both arise out of the same suit between the parties.
2. The petitioner/were and two minor children instituted a suit for payment of dower and for the return of dowry articles in favour of plaintiff No. 1, the petitioner and for maintenance in favour of all the plaintiffs. The suit was decreed with all the prayers made in the plaint vide ex parte decree dated 22.12.2009. Application for setting aside ex parte decree was made, statement of learned counsel for the applicant was recorded on 5.6.2010. She admitted the decree. The application was dismissed vide order .Dated 5.7.2010. An application for execution of decree was submitted. It was calculated at Rs. 7 million as arrears of the maintenance the amount of dower and the value of dowry articles. Out of it Rs. 1,00,000/- was paid. The payment was however later on discontinued.
Vide Robkar dated 26.7.2010, the pension of the respondent No. 2 was attached. The respondent preferred an appeal against the orders dated 5.6.2010, 5.7.2010, 20.7.2010 and 26.7.2010. The same was dismissed by the learned Additional District Judge, vide order dated 9.8.2010. The respondent filed Writ Petition No. 3946/2010 praying for setting aside the order dated 9.8.2010 and for setting aside the warrants of attachment issued in the and of the execution of the decree, which is going to be decided through this composite judgment. The respondent filed yet another application before the learned Trial Court for setting aside ex parte decree, recalling of the order attaching the pension and for cancellation of warrants of arrest. The Court being cognizance of the earlier proceedings and the pendency of the W.P. N. 3946/2010 refused to set aside the ex parte decree however recalled its earlier order dated 5/.2010 and ordered the release of the pension of the respondent vide order dated 6.11.2010. A show-cause notice was issued to the respondent- judgment-debtor why his immovable property be not sold. This order is impugned in W.P. No. 5029 of 2010.
3. It is contended by the learned counsel for the petitioner that the learned executing COurt could not recall/review its earlier order dated 26.7.2010, as the review is not a vested right of a party and is a creation of statute and Family Courts Act, 1964 does not provide this remedy; that since the appeal preferred against the same order had been dismissed by the learned Additional District Judge, Rawalpindi, vide order dated 9.8.2010 and the matter was sub-judice before this Court in W.P. No. 3946 of 2010, therefore, the executing Court could not pass the impugned order; that the pension of an officer is not exempted from attachment in execution of decree passed by a Family Court and that the respondent after having made a statement dated 5.6.2010 and having made payment of Rs. 1,00,000/-has admitted the ex parte decree, therefore he could no more impugn it; and the petitioner and co-plaintiff minors are at the verge of destitution.
4. On the other hand, it is contended by the learned counsel for the respondent that decree against the respondent has been passed on his back and fraud has been committed by the petitioner; that the pension of the respondent could not be attached for the execution of the decree under Section 60(g)(j) of the CPC read with Section 11 of the Pension Act, 1871 and Section 171 of the Pakistan Army Act, 1952. It is further argued that if an order is ab initio void the same could be recalled. Reliance is placed on 2008 P. Cr. L. J. 782.
5. I have heard the learned counsel for the-parties and have also gone through the record.
6. The order dated 5.6.2010 passed by the Duty Judge adjourning the application submitted by the respondent-judgment-debtor, the order dated 5.7.2010 dismissing the application for setting aside the ex parte decree and the order dated 26.7.2010 passed by the learned Judge Family Court issuing non-bailable warrants of arrest and attaching the pension of the respondent- judgmentdebtor were challenged by respondent No. 2 through an appeal preferred before the District Judge, Rawalpindi. This appeal was dismissed for having been preferred after the elapsed of period of limitation by the learned Additional District Judge, Rawalpindi, vide judgment and decree dated 9.8.2010. Through W.P. No. 3946/2010, the respondentjudgment-debtor had challenged the judgment and decree passed by the learned Appellate Court and had generally prayed for setting aside of the acts in and of the ex parte decree. Now he had no locus standi and no occasion to submit another package of applications before the executing Court praying for setting aside order the ex parte, re-calling of order attaching pension and for cancellation of the non-ballable warrants of arrest. The Writ Petition No. 3946/2010 was submitted on 16.9.2010 but no mention of pendency of this petition was made in those applications. The respondent-judgment-debtor, in this manner succeeded in obtaining the order dated 6.11.2010, which in fact amounts to review. Since the respondent-judgment--debtor had challenged the order dated 9.8.2010, passed in appeal by the learned Additional District Judge, Rawalpindi, he should have waited for its adjudication. He cannot be allowed to simultaneously avail two remedies one before the High Court and other before the executing Court. The executing Court could not pass the impugned order reviewing its earlier order dated 26.7.2010. Even if the earlier order be void altogether, the law provides a course for rectifying the wrong. The remedy by way of filing a review petition is the creation of statute, it does not vest in a Court unless provided by law.
The order dated 6.11.2010, having been passed without jurisdiction, is set aside. Writ Petition No. 5029/2010 succeeds.
7. In Writ Petition No. 3946/2010, the judgment- debtor has impugned the orders dated 5.6.2010 passed by the Duty Judge who had recorded the statement of the learned counsel for the judgment-debtor and adjourned the case for hearing to 5.7.2010, and the order dated 9.8.2010, passed by the learned Appellate Court dismissing his appeal and has prayed for setting aside of all the acts in and of the execution of the ex parte decree.
8. It is contended by the learned counsel for the petitioner that the ex parte decree is a shum in law as no service had been effected on the judgment-debtor; that the learned counsel for the judgment-debtor did not have her statement recorded before the Duty Judge, her signatures were obtained on a blank paper and her statement was inserted later on; that the learned Appellate Court erred in law while dismissing the appeal as the judgment-debtor had alleged fraud in his application for setting aside the ex parte decree and both the learned Courts below have contributed to it by not setting the impugned decree at naught obtained by fraud committed by the decree-holder.
9. The statement of the judgment-debtor was recorded by the Duty Judge on 5.6.2010 and the case was adjourned by him. The argument of the learned counsel for the judgment-debtor that signatures of his counsel were obtained on a blank paper cannot be given under weight. A counsel who practices in law cannot claim the bonus of his mistake of signing a blank paper. Moreover, a presumption of truth is always attached to the judicial record. This argument is repelled.
Resultantly, it is held that the order dated 5.7.2010 based on the statement made on 5.6.2010 suffers from no illegality. Moreover, the order dated 5.7.2010, was challenged before the learned Appellate Court after the elapse of the period of limitation. The appeal to the extent of orders dated 5.6.2010 and 5.7.2010 has rightly been dismissed. Therefore, the player to the extent of expunging the proceedings dated 5.6.2010, and setting aside the order dated 5.7.2010, is declined. To that extent this petition is dismissed.
10. The question that is yet to be resolved is whether the pension of any person subject to the Pakistan Army Act, 1952 in view of Section 171 of the said Act, Section 11 of the Pension Act, 1871 and Section 60(g)(j) of CPC could be attached in satisfaction of any decree or order passed by a Court or not. Although, I have held while deciding Writ Petition No. 5029/2010 that the order dated 6.11.2010, passed by the learned executing Court amounts to reviewing his earlier order dated 26.7.2010, and therefore is not sustainable in law and same has been set aside, but now myself seized with the same proposition. I have to resolve the matter independently. The ex parte decree passed in favour of the decree-holder holds the field and has to be executed. The legislature provided the different modes for execution of a decree and also allowed the attachment of lands houses, goods, money, bank notes, cheques, bills of exchange, bonds, sureties, debts and shares etc. For the satisfaction of the decree but it also granted exemption to certain belongings, necessary tools, the dwelling houses including the stipends, gratuity and pensions etc. Under Section 60(j)(g) of CPC, Section 171 of Pakistan Army Act, 1952 and the Pensions Act, 1871 from being attached and cast away for satisfaction of decree. The decree-holder has a right to have its decree executed but the judgment-debtor has a right to save his pension from attachment etc. For satisfaction of any decree or order passed by any Court, because that is his repose and retreat. The Writ Petition No. 3946/2010 is accepted to the extent of that part of the order dated 26.7.2010, that attaches thepension of the judgment-debtor. The executing Court is at liberty to adopt the measures under law and satisfy the decree according to the provisions of Section 60 and Order 21 of C.P.C. .