Through the instant writ petition, the petitioner has called into question the legality and validity of impugned order dated 16.10.2014 passed by learned Judge Family Court (Executing Court), Kharian whereby the objection petition in the executing proceedings filed by him was dismissed and the impugned order dated 19.02.2015 passed by learned Additional District Judge, Kharian whereby the revision petition filed by the petitioner against the order dated 16.10.2014 was also dismissed.
2. Briefly the facts of the case are that respondents No.3 and 4 filed a suit for maintenance against the son of the petitioner namely Muhammad Naseer (Judgment Debtor) which was decreed in their favour and they were held entitled to maintenance amounting to Rs.3000/- per month each with annual increase of 10%. On 31.10.2013 respondents No.3 and 4/decree holders filed an execution petition against the judgmentdebtor/son of the petitioner and thus the residential house of the petitioner measuring 07-marlas was attached. The petitioner moved objection petition in the execution proceedings, which was dismissed by the learned executing court vide impugned order dated 16.10.2014. Feeling aggrieved the petitioner preferred revision petition against the impugned order dated 16.10.2014 before the learned Additional District Judge Kharian, which was also dismissed vide impugned order dated 19.02.2015. Hence, this writ petition.
3. It is mainly contended by the learned counsel for the petitioner that any order against a person who is not party to the proceedings is not executable against him. He has placed reliance on 2006 SCMR 913. He submits that the attached property is under the exclusive ownership and possession of the petitioner and the judgment-debtor has no concern with this property. He further contends that the petitioner never stood guarantor of the judgment debtor during the proceedings and in such circumstances the sole property of the petitioner cannot be attached by the learned executing court. He lastly contends that the impugned orders dated 16.10.2014 and 19.02.2015 passed by the learned lower courts are liable to be set aside. On the other hand learned counsel for respondents No.3 and 4 has supported the impugned orders. He also relied upon case law titled as "Sultan Ahmad v. Judge Family Court and 5 others" (PLD 2012 Lahore 148).
4. Arguments heard. Record perused.
5. It is established from the record that the petitioner was not party in the suit. It is also established from bare perusal of the execution petition that the same was filed against Muhammad Nasir, judgment-writer. It is also established from the record that no decree has been passed against the petitioner. The petitioner never stood surety or guarantor on behalf of the judgment-debtor. The petitioner did not give any undertaking that in case his son (judgment-debtor) does not pay the decretal amount he will pay the same, therefore, decree could not be executed against the petitioner. The executing court has exceeded his jurisdiction by executing the decree against the petitioner who is the paternal grandfather of respondents No.3 and 4. Reference may be made to the case law titled as "Muhammad Jameel v. Mst. Tahira Bibi and 4 others" (2013 CLC 1529 (D.B.), "Muhammad Aslam v. Ayaz Ghazanfar and 2 others" (PLD 2012 Lahore 392) and "Mst. Nasreen v.
Government of Sind and 2 others" (PLD 1989 Karachi 28).
6. In case titled "Sh. Shajar Hussain v. Haji Abdul Majeed and others" (2006 SCMR 913), it has been held as under:- "After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Panjnad Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, we accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3- 2000 as well as judgments dated 2-2-1998 and 15-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own costs"
7. The judgment titled "Sultan Ahmad v. Judge Family Court and 5 others" reported in (PLD 2012 Lahore 148) is not applicable to the facts and circumstances of this case and I respectfully do not follow the said judgment for the reasons that in the said case reliance has been placed on the case law titled as "Haji Nizam Khan v. Additional District Judge, Lyallpur and others" (PLD 1976 Lahore 930). In case titled "Haji Nizam Khan v. Additional District Judge, Lyallpur and others" a suit was filed by the minor children against grandfather whereas in this case respondent No.4 has instituted suit against real father and not against the petitioner (paternal grandfather).
8. Sequel to the above, this writ petition is accepted and the impugned orders are set aside with no order as to cost.