SHUJAAT ALI KHAN, J.---Briefly put, the petitioner along with her minor son, namely Haseeb, filed a composite suit for recovery of dowry articles, dower amount and maintenance which was decreed by the learned Judge Family Court, Lahore (the learned trial Court), vide judgment and decree, dated 15.09.2014, in the following manner:-- i. Suit for dissolution of marriage was decreed on the basis of cruelty. ii. The petitioner was held entitled to recover dowry articles as per list Exh.P1/1 except gold, artificial jewelry and articles at serial Nos.30, 31 and 33 to 35 or in alternate Rs.30,000/- as price thereof. iii. The petitioner was held entitled to receive maintenance at the rate of Rs.3,000/- per month only for Iddat period. Likewise, the minor was awarded maintenance at the same rate from the date of filing of suit till his legal entitlement with 10% annual increase. iv. The petitioner was also held entitled to recover Rs.50,000/- as dower.
Thereafter, the decree holders filed execution petition in which respondent No.1 entered appearance on 10.02.2015 and paid Rs.25,000/- towards part satisfaction of the decree. He also filed an application, on 23.02.2015, for setting aside of ex parte judgment and decree, dated 15.09.2014 which was dismissed by the learned trial Court vide order, dated 25.04.2016, against which respondent No.1 filed an appeal which was accepted by the learned Additional District Judge, Sialkot (the learned Appellate Court), vide judgment, dated 22.09.2016; hence this petition.
2. Learned counsel for the petitioner submits that the learned Appellate Court failed to consider that the application filed by respondent No.1, for setting aside of ex parte judgment and decree, was barred by law of limitation; that the judgment and decree passed in favour of the petitioner and her son was in the knowledge of respondent No.1 from the date of refusal of service of notice by him and subsequently from the date of avoiding the execution of warrants of arrest issued against him; that the application filed by respondent No.1 for setting aside of ex parte judgment and decree was dismissed on 25.04.2016 whereas the dowry articles were received by the petitioner, on 27.04.2016, thus, it was not feasible to reopen the matter at this stage and that the judgment relied upon by learned counsel for the petitioner before the learned Appellate Court had erroneously been construed as part of arguments of learned counsel for respondent No.l.
3. On the other hand, learned counsel representing respondent No.1, while defending the impugned judgment passed by the learned Appellate Court, submits that as the petitioner got decree for dissolution of marriage on the basis of Khula she was bound to return the dower given to her by respondent No.1 in the shape of gold ornaments factum whereof was duly incorporated by the petitioner in her daily diary; that question regarding dower can only be decided after recording evidence of the parties, thus, the learned Appellate Court committed no illegality while passing the impugned judgment and that it is not believable that respondent No.1 who has been contesting the application filed by the petitioner for custody of the minor was so sluggish to avoid appearance in the suit filed against him.
4. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that as period of limitation has been provided in section 9 of the Family Courts Act, 1964 read with Rule 13 of the Family Court Rules, 1965 the learned Appellate Court has committed grave illegality while entertaining a time barred application.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition.
6. According to recitals of the application filed by respondent No.1 for setting aside of ex parte judgment and decree, in Para No.9 respondent No.1 claimed that he came to know about the decree from the Bailiff when he visited his premises. While averring so, he failed to provide detail as to how and when he came to know about passing of the ex-parte judgment and decree. During execution proceedings, firstly the notices were issued in the name of respondent No.1, on 23.09.2014, for 17.10.2014. According to report on the notices issued for the said date respondent No.1 refused to accept the service, therefore, warrants of arrest were issued against him. According to report of the Bailiff who approached for execution of warrants of arrest, he faced grave resentment and accordingly he requested for provision of police assistance and as a last resort the Bailiff succeeded to execute the warrants of arrest with assistance of Police, on 10.02.2015. A glance over the events discussed above shows that prima-facie respondent No.1 was well-aware about passing of decree and he avoided its satisfaction till the time he was arrested with the assistance of Police and was produced before the Court when he paid Rs.25,000/- towards part satisfaction of the decree but the learned Appellate Court, while deciding the appeal filed by him, did not consider said fact. Pursuing of guardianship petition by respondent No.1 can hardly be used to justify the findings of the learned Appellate Court when the same runs contrary to the record as according to rule 13 of the Family Court Rules, 1965 a judgment-debtor is bound to move for setting aside of the ex-parte judgment and decree within 30 days from the date of passing of the same whereas in the instant case respondent No.1 filed such application after more than five months of passing of the same.
7. As far as plea of learned counsel for respondent No.1 that if the matter is not re-opened, respondent No.1 would not be able to receive back gold ornaments, is concerned, suffice it to note that as suit of the petitioner was decreed on the ground of cruelty there was no question of return of dower. Further, the said fact could not justify lapse on his part rather for the purpose he can resort to appropriate proceedings for recovery thereof.
8. For what has been noted above, instant petition is accepted and the impugned judgment rendered by the learned Appellate Court is set aside with no order as to costs.