IJAZ ANWAR, J.---Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has questioned the judgment and order of the learned Judge Family Court dated 24.6.2014 and that of learned Additional District Judge-I, D.I.Khan dated 30.9.2014, and claimed the following relief:-- "It is, therefore, humbly prayed that on acceptance of instant petition, the judgment passed by the appellate Court may kindly be set aside and remit back the case to appellate Court to decide the case afresh on merits or any other remedy that may deem fit by this Honourable Court in the interest of petitioner-defendant".
2. Without going into the detail facts of the case, the relevant for the present controversy are that vide judgment dated 11.6.2011 a decree to the following effect has been granted to the respondent:-
1. Decree for dissolution of marriage;
2. Decree of dower amounting to Rs,15,000/-;
3. Decree of ordinarily daily day used dowry articles in the same used condition or its price value to the extent of Rs,65,000/- whereas the claim of 05 tolas of gold ornaments which according to her was a part of her dowry articles refused due to want of proof;
4. Decree of maintenance of plaintiff from 01.7.2009 till decision of the case a Rs,1000/- per month along with maintenance for three months of Iddat period @ Rs,2000/- per month
5. Decree of 05 bolas of gold ornaments or its market value;
6. Decree of Rs,3000/- as delivery expenses;
7. Defendant's plea for restitution of conjugal rights refused;
8. Recovery claims of husband refused due to want of jurisdiction. (underlines supplied).
3. The judgment and decree granted by the learned Family Court, was questioned before the appellate forum as well as before this Court, however, it remained intact and attained, finality.
4. In the execution proceedings, all the decree so granted stood satisfied except the decree to the extent of 05 tola gold ornaments or its market value, above referred. The learned executing Court, vide order dated 10.7.2014, directed the petitioner to deposit the prevailing market value of 05 tola gold ornaments specifying it as Rs,2,39,500/-. The appeal filed by the present petitioner was dismissed vide judgment and order dated 30.9.2014, on the ground that no appeal lie under Section 14 of the Family Courts Act, 1964.
5. Learned counsel for the petitioner argued that the executing Court fell into error in directing the petitioner to deposit the prevailing market value of 05 tola gold ornaments, because the respondent herself has claimed 05 tola gold ornaments or in the alternate, its market rate Rs,1,50,000/-. Learned counsel placed reliance upon the judgment of this Court reported in 2014 CLC 1307, wherein it was held that the prevailing market rate would be the one when the suit was filed. Learned counsel further placed reliance upon the judgment reported as 1991 MLD 1321 and argued that determination by the executing Court was the decision within the meaning of Section 14 of the Family Courts Act, as such the appeal was competent and the learned appellate Court fell into error in holding otherwise.
6. Learned counsel representing the respondent, argued that the suit was filed in the year 2009, the decree in favour of the respondent was awarded on 11.6.2011 and since then the poor lady has been made to suffer and hindrances are created in way of the respondent to get the fruit of her decree.
Learned counsel contended that under the orders of the executing Court, the petitioner has already deposited the decretal amount in installments and therefore, this petition has become infructuous.
He further contended that the apex Court in the case reported as 2017 SCMR 321, held that, "the prevailing rate would be the one when actually payment is made". Regarding jurisdiction of the Court, learned counsel placed reliance on PLD 1999 Lahore-33) and 1986 CLC 620 and contended that interim orders are not amenable to the appellate jurisdiction under Section 14 of the West Pakistan Family Courts Act, 1964, therefore, the learned Additional District Judge has rightly dismissed the appeal.
7. Arguments heard and record perused.
8. In order to comprehend the maintainability of the appeal before the appellate forum in family cases, it will be advantageous to reproduce Section 14 of the Family Courts Act, 1964, which reads as under:- "Appeals.---[(l) 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; and
(b) To the District Court, in any other case.]
(2) .................................
(a) .....................
(b) ....................
(c) ....................
[(3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) .......................................
(Underlines supplied).
Section 14(3) of the Family Courts Act, 1964, provides that no appeal or revision was competent against the interlocutory order of the Family Court. In the case of Mst. Nasim Khatoon and others v.
Syed Irshad Hussain and others, reported in 1991 MLD 1321, the Honourable single bench of Lahore High Court considered the provision of section 14(1) and held that the expression "decision" appearing in Section 14 has to be construed ejusdum generis so as to provide an appeal against final and not interlocutory order placed decision as held by this Court in Syed Muhammad Raza Shah v. Sayeda Salma Gilani and another. However, the same Honourable Judge in PLD 1999 Lahore 33, held another view and considered that such interlocutory orders could not be held to be decision within the meaning of Section 14 of the Family Courts Act. Similar view was expressed in the cases reported in 1986 CLC 621. Since the execution petition was pending and it was not decided, rather direction was made for the deposit of the decretal amount, therefore, such order cannot be held to be a decision within the meaning of Section 14 of the Family Courts Act, 1964. Be that as it may, the most crucial question in this case is, that, whether the petitioner would be liable to pay/deposit the prevailing market value of the decretal amount at the time when suit was instituted or by the time when the said payment is made to the decree holder.
9. In the instant case, the respondent has claimed 05 tola gold ornaments or in the alternate its prevailing market value @ Rs,1,50,000/-, however, while awarding the decree, the learned Family Court vide judgment and order has not mentioned the amount but referred it as "decree of 05 tola gold ornaments or its market value". Though the Division Bench of this Court in the case of Muhammad Shoaib v. Shamim Akhtar (2014 CLC 1307), held that the market rate is to be considered according to the rate prevailing during the dates when the suit was instituted and not the rate on some other date, however, recently, the Apex Court in the case of Haji Muhammad Nawaz v. Samina Kanwal ( SCMR 321), held that, 'grant of requested relief regarding payment of price of gold ornaments at the prevalent market rate, in case the golden ornaments are not returned is fully justified and it cannot be said that it amounts to going beyond terms of decree by the executing Court' . The same view was also expressed by the Apex Court in the case of Aysha Shaheen v. Khalid Mehmood (2013 SCMR 1049). The Division Bench of this Court in the case of Noshad All v. Mst. Afzanat Rauf and 5 others (2013 CLC 492), discarded the objection that the determination of the price of gold at the rate prevailing on the date of institution of the suit, is to be taken.
10. In the instant case, the 05 tola gold ornaments remained unpaid for the last about eight years, the execution of the decree to that extent remained delayed. Market value of the gold will not remain static endlessly and market value will be considered at the time when it is actually paid to the decree holder, particularly in family matter. This Court has been informed that the prevalent market value of the 05 tola gold ornaments have since been deposited with the Nazir of the Senior Civil Judge at D.I.Khan, therefore, I restrain myself from ordering regarding payment of the market value of the gold when it is actually paid.
11. For the afore-said reasons, I find no infirmity or jurisdictional error in the judgment and order of the executing Court. The payment deposited with the Nazir of Senior Civil Judge shall be forthwith released to the respondent. With these observations, the writ petition is dismissed. C.M. No,660-D of 2014 is dismissed for having become infructuous.