' MAMOON RASHID SHEIKH, J.--- This petition calls into question the judgment dated 18-5-2013 passed by the learned executing Court/Judge Family Court, Rawalpindi (respondent No.4) and the judgment dated 25-11-2013 passed by the learned Additional District Judge, Rawalpindi (respondent No.3).
2 . T'he brief facts giving rise to this petition are to the effect that respondents Nos.1 and 2 filed a suit for recovery of maintenance, dower and dowry, etc. Against the petitioner.
3. The petitioner also filed a separate suit for restitution of conjugal rights against respondent No.
1. Both suits were consolidated and through the consolidated judgment and decree dated 15-3- 2010 the learned Judge Family Court, Rawalpindi, partially decreed respondents Nos.1 and 2's suit to the extent that the minor respondent No.2 was allowed maintenance. Respondent No.1 was awarded the dower and dowry, however, her claim for recovery of 12 tolas gold jewellery was dismissed. The petitioner's suit for restitution of conjugal rights was also dismissed.
4. Feeling aggrieved the petitioner as well as respondents Nos.1 and 2 filed appeals. The learned Additional District Judge, Rawalpindi, through a consolidated judgment and decrees dated 15-7- 2010 partially accepted respondents Nos.1 and 2's appeal in that respondent No.1 was held entitled to recover 12 tolas gold jewellery. The remaining portion of the decree was maintained. The petitioner's appeal was dismissed with the result that the dismissal of his suit for restitution of conjugal rights, was maintained.
5. Subsequent thereto, the petitioner filed Writ Petition No.4423 of 2010 before this court. The said petition was dismissed on 19-1-2011. The petitioner challenged the order dated 19-1-2011 before the Hon'ble Supreme Court of Pakistan through Civil Petition No.281 of 2011. The petitioner's Civil Petition was, however, dismissed through the order dated 25-6-2011.
6. In the meantime, respondents Nos. 1 and 2 filed an execution petition and during the course thereof the petitioner moved an application for determination of the value of the 12 tolas gold jewellery. The learned executing Court framed an issue on this question Which was to the following effect:---
(i) What was the market value of 12 tolas gold ornaments at the time of institution of suit of decree-holder?
7. Feeling aggrieved respondents Nos.1 and 2 filed an appeal which was allowed by the learned Additional District Judge, Rawalpindi, on 7-9-2012. As a consequence, the learned executing Court reframed the issue as to the value of 12 tolas gold jewellery to the following effect:--- "What price of 12 tolas gold ornaments decree holder is entitled to recover from the judgment debtor? OP. Parties."
8. Evidence of the parties was recorded and through the impugned judgment dated 7-5-2013 respondent No.4 held that respondent No.1 is entitled to recover the present market value of the gold jewellery.
9. The petitioner challenged the finding of, respondent No.4 through an appeal and respondent No.3 through the impugned judgment dated 25-11-2013 held that on the strength of the judgment of the Hon'ble Supreme Court reported as "Mst. Ayesha Shaheen v. Khalid Mehmood and another (2013 SCM R 1049) respondent No.1 is entitled to recover the present market value of 12 tolas gold jewellery.
10. The learned counsel for the petitioner submits that respondents Nos.3 and 4 have erred in coming to the conclusion that respondent No.1 is entitled to recover from the petitioner the present market value of 12 tolas gold jewellery. During recording of evidence the petitioner brought on record evidence that the market value of one tola gold on 14-11-2007 was Rs.18,200/-. The learned counsel for respondent No.1 taking the said value as the base point put questions to the petitioner, during his cross-examination. Respondent No.1, therefore, impliedly accepted the value of one tola gold as Rs.18,200/-. Further submits that since respondent No.1 had not fixed the value of 12 tolas gold jewellery at the time of institution of the suit, therefore, by virtue of the judgment of the Hon'ble Supreme Court reported as "Mst. Mehbooba v. Abdul Jalil" (1996 SCM R 1063) the alternative price of the gold jewellery should be either fixed at the time of institution of the suit or at best at the time of passing of the decree. Further submits that the present market value of the gold jewellery cannot be awarded. Contends that "Mst. Ayesha Shaheen's case" (supra) is distinguishable in view of the facts of the case. The learned Courts below have, therefore, erred in directing the petitioner to pay the present market value of 12 tolas gold.
11. Heard, record perused.
12. In order to fully appreciate his contentions the learned counsel for the petitioner was required, during the course of arguments, to furnish a copy of the plaint filed by respondent No.1 in her suit as the said copy has not been appended to the petition. A perusal of the copy of the plaint so furnished reveals that in respect of the gold jewellery in question respondent No.1 had prayed as under:- "Dower amount Rs.50,000/- in accordance with Annexure A along with jewellery 12 tolas gold ornaments which were snatched by the defendant. Documents and dowry articles as per list or value mentioned in the list attached may kindly be passed in favour of the plaintiff and against the defendant throughout with cost."
13. As will be evident respondent No.1 had only prayed for recovery of, "12 tolas gold ornaments". She had not fixed the price of the gold jewellery in the alternative. A decree for recovery of 12 tolas gold jewelry was passed by the learned appellate Court in favour of respondent No.1. The petitioner, therefore, has the option either to hand over the 12 tolas gold jewelry to respondent No.1 or in case he is not in a position to do so then to compensate respondent No.1 in terms of money equal to an amount that would enable her to purchase 12 tolas gold from the open market. I am fortified in my view on the basis of "Mst. Ayesha Shaheen's case" (supra) wherein whilst distinguishing "Mst.
Mehbooba's case" (supra) the Hon'ble Supreme Court has held as under:--- "We heard the learned counsel for the appellant as well as the respondent and have gone through the judgments referred to in the leave granting order. As regards 17 tolas of gold, which were included in the list of dowry articles (Exh.P.5), the appellant had prayed for its recovery or its value, stated to be Rs.380,000/-. The trial Court granted decree for recovery of dowry articles and not its market value in the alternative. The appellant was therefore held entitled to the recovery of 17 tolas of gold. This part of the decree can be satisfied either upon the handing over by the judgment-debtor/respondent to the appellant gold ornaments weighing 17 tolas and in case he is not in a position to provide the same the appellant can be appropriately and fully compensated in terms of money only if she is paid an amount that would enable her to purchase the same from the open market. She can do that only if she is, paid the current market value of gold. Unlike other property, moveable or immovable determination of the market value of the gold does not pose any difficulty as the same is fixed by the gold market on daily basis and is readily exchangeable for cash. The case of Mst. Mehbooba v. Abdul Jalil (ibid) is distinguishable as there the plaintiff wife had not claimed the recovery of gold ornaments or its value but only its value specified in the plaint. In order to highlight the distinction the relief claimed in the suit filed by Mst. Mehbooba is reproduced.--- "... For recovery of Rs.1,62,600, detailed as under:---
(I) ...........................................................................................
(2) Rs.25,000 the value of the golden ornaments exclusively given to her by her husband at the time of her marriage as given in para. 9 of the plaint; and
(3) Rs.87,000 the market value of the golden ornaments belonging to the plaintiff; given to her by her parents mentioned in para. 10 of the plaint."
' The Court thus held that the petitioner before it was entitled to the market value of the gold ornaments decreed in her favour in accordance with the price fixed by her as "no decree for delivery of ornaments had been passed." The petitioner was granted a simple money decree. In the present case not only the relief claimed was for the recovery of gold ornaments or in the alternative its market value but the decree so granted was for the recovery of the gold ornaments.
The case of Mst. Mehbooba v. Abdul Jalil turned on its own facts and does not in any way lay down a general rule that in all cases where the decree for recovery of gold is granted its value shall be determined at the market price prevailing on the date of grant of decree or filing of the suit. Where decree for delivery of gold or its market value is granted the value shall be determined with reference to the date of payment. As only then the decree can become fully satisfied. Neither the High Court nor the First Appellate Court had focused on the afore-stated distinction. In the case- of Mst. Humaira Majeed v. Habib Ahmad cited in the leave granted order the Lahore High Court had also drawn the said distinction and had rightly held that the provisions of Order )0C, Rule 10, C.P.C. Will not be applicable strictly to the execution of a decree by the Family Court in view of section 17 of the West Pakistan Family Courts Act, 1964.
(3) In view of the above, we hold that the appellant is entitled to the recovery of 17 tolas of gold ornaments or in the alternative its current market value. Consequently, the appeal is allowed. The impugned judgments of the High Court as well as the First Appellate Court are set aside and that of the Executing Court dated 12-1-2011 is restored.
' The reliance placed by the learned counsel for the petitioner on "Mst. Mahboobas case" (supra) is, therefore, misconceived and is accordingly repelled.
14. Under the circumstances, I do not find any infirmity in the impugned orders. They are unexceptional and do not call for any interference.
15. The instant petition is accordingly dismissed in limine being devoid of force.