' SAGHEER AHMAD QADRI, J.--- Appeal was filed by the petitioner/defendant against the judgment and decree dated 20-12-2010 whereby an application for setting aside the ex parte judgment and decree passed by the learned trial court was challenged. Learned Appellate Court admitted the appeal for regular hearing vide order dated 21-1-2011. Subsequently respondent decree- holder/plaintiff put in appearance before the learned appellate court and the learned appellate court vide order dated 25-3-2011 directed the petitioner/defendant/ judgment-debtor to submit surety bond worth Rs,4,00,000/- for the purpose of suspension of the impugned judgment and decree, which he could not and vide impugned order dated 28-3-2011 the learned appellate court only on that score due to non-compliance of the above said the main appeal. Feeling aggrieved the petitioner-defendant has now preferred this writ petition.
2. Learned counsel for the petitioner contends that as the order dated 25-3-2011 was only to the extent of submission of the surety bond whereby prayer was made for suspension of the operation of the impugned judgment and decree passed by the learned Judge Family Court in favour of the respondent against the petitioner and in case of non-compliance of that order, operation of the impugned decree might have not suspended and it could have been executed by the learned trial court; that the learned appellate court was under obligation to decide the appeal on merits which course has not been adopted thus the jurisdiction vested in the learned appellate court was not exercised. While relying on "MUHAMMAD ASLAM v. Mst. KHURSHEED BEGUM and 6 others" (2005 YLR 136) and "MUHAMMAD ABDULLAH v. Mst. ZUBAIDA BEGUM and another" (1985 CLC 1542) prayed that this writ petition be allowed and impugned order and decree dated 28-3-2011 be set aside and the matter be remanded to the learned appellate court with the direction to dispose of the same on merits.
3. Confronted with the situation learned counsel for the respondent has agitated that as the petitioner did not comply with the order passed by the learned trial court, therefore, the order was rightly passed and the learned appellate court has exercised the jurisdiction vested in it in a lawful manner. Prayed that as the matter between the parties is pending since 2009 and the maintenance allowance of respondent No.3 wife of the petitioner is at stake, therefore, this petition be dismissed.
4. I have considered the contentions raised by learned counsel for the parties.
5. Admittedly, the purpose of submission of the surety bond as required vide order dated 25-3-2011 was to pass an order for suspension of the operation of judgment and decree passed by the learned trial court for the recovery of maintenance allowance in favour of respondent, it had nothing to do with the main appeal, which is to be decided by the learned appellate court on merits. It is now settled that the matters between the parties are to be decided on merits rather.
Than technicalities.
6. An appeal against a decision or decree passed by a Family Court is provided under section 14 of the West Pakistan Family Courts Act, 1964. In order to better understand this provision, it is appropriate to reproduce section 14 of the Act, ibid:--- Appeal.--- [(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable----
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge.]
(b) [to the District Court in any other case.] (2). No appeal shall lie from a decree by a Family Court----
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939,'
(b) for dower [or dowry] not exceeding rupees [thirty thousand] ; (c) for maintenance of rupees [One thousand] or less per month.
[(3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) The appellate Court referred to in subsection (1) shall dispose of the appeal within a period of four months.]"
From bare reading of the above mentioned provision it is clear that in order to file an appeal against a decision or decree passed by a Family Court it has not been provided as condition precedent to deposit the decretal amount or to submit any surety or security. However, as in this case the judgment-debtor/appellant prayed for suspension of the operation of decree passed by learned Judge Family Court, the learned appellate court directed him to submit a surety bond within a stipulated period. This submission of surety bond was only to secure the execution of the decree, however, it has nothing to do with the filing of appeal or for its disposal by learned appellate court under section 14 of the Act, ibid. As no provision was available nor enacted by ,the legislature under section 14 of the West Pakistan Family Courts Act, 1964, therefore, dismissal of the appeal filed by the petitioner vide impugned order was totally exercise of a jurisdiction which did not vest with the court. Thus the impugned order was nullity in the eye of law. Learned counsel for the petitioner referred the judgment cited as "MUHAMMAD ABDULLAH v. Mst. ZUBAIDA BEGUM and another" (1985 CLC 1542) which supports this view. Relevant paragraph is hereby reproduced:- "Section 14 is a self-contained Code as regards right of appeal. In the absence of any provision in the aforesaid section curtailing the right of appeal as has been done by learned Additional District Judge, I am of the opinion that the impugned order directing the deposit of the decretal amount, before hearing the appeal on merits was wholly untenable. I regret to say that the learned Additional District Judge has read more in the Statute than what it contained and proceeding on this wrong assumption has denied a right of hearing to the appellant to have his case decided on merits. May be, if the appellant before him had applied for the stay of execution of the money decree, the Court could, while issuing a stay order, impose such a condition, but then, such a condition could not be imposed to the entertainment and hearing of appeal on merits. Impugned order, therefore, suffered from an error floating on the surface of the proceedings. I, therefore, have no hesitation in striking it down as illegal and to have been passed without lawful authority.
The precedent relied upon, reported in 1984 SCMR 181 proceeds clearly on distinguishable facts and is not attracted to the case on hand."
Resultantly, while allowing this writ petition, impugned order and decree dated 28-3-2011 is set aside and the matter is remanded to the learned appellate court to dispose of the appeal on merits within a period of two months positively. The parties are directed to appear before the learned District Judge, Attock on ,2-11-2011, who shall further entrust the matter accordingly. No order as to costs.