MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the petitioner has called in question the order dated 20.12.2017 passed by the Addl: District Judge, Alipur whereby the appeal filed by the petitioner was dismissed and the order dated 29.11.2017 passed by the executing court was upheld.
2. Brief facts of the case are that respondent No,1 was married with Muhammad Nadim, son of the petitioner, on 09.06.2013. From the wedlock two minors (respondents Nos, 2 and 3) were born. The relationship between the parties initially remained cordial but thereafter become strained.
Consequently, respondent No,1 filed a suit for recovery of dower, dowry articles and maintenance allowance against her husband Muhammad Nadeem and the petitioner. The trial court vide ex parte judgment and decree dated 11.06.2016 decreed the suit for recovery of maintenance allowance at the rate of Rs,5,000/- per month to the extent of respondent No,1 and at the rate of Rs,2,000/- per month each to the extent of. respondents Nos,2 and 3 from the date of institution of the suit. The suit was also decreed to the extent of dower i,e, 10-Marlas plot along with four walls and hand pump situated in Basti Mochiwala. The suit to the extent of dowry articles was decreed at the rate of Rs,1 00,000/-. Respondent No,1 filed an execution petition. During pendency of the said execution petition, the petitioner filed an objection petition in which the respondent No,1 filed her written reply. The said objection petition was dismissed by the executing court vide order dated 29.11.2017. Feeling aggrieved of the said order, the petitioner preferred an appeal which was dismissed by the appellate court vide order dated 20.12.2017. Both the aforesaid orders are under challenge through instant constitutional petition.
3. Learned counsel for the petitioner has contended that marriage between his son Muhammad Nadeem and respondent No,1 was solemnized at Karachi and it was a "runaway" marriage, therefore, no dowry articles were given to respondent No,1; states that courts below have not appreciated that the decree was passed against the respondent No,6 and not directly against the petitioner; that the petitioner challenged the order of dismissal of objection petition by filing appeal before the appellate court and the said court dismissed the same as not maintainable and directed the petitioner to invoke the constitutional jurisdiction of this Court; that the order of the executing court falls within the definition of "decision" in terms of section 14 of the Family Courts Act, 1964 ("Act"), therefore, the appeal was maintainable and has wrongly been dismissed by the appellate court.
4. Conversely, learned counsel for respondents Nos, 1 to 3 has defended the impugned orders and prays for dismissal of this petition.
5. Heard. Record perused.
6. The suit filed by respondents for recovery of maintenance allowance, dower and dowry articles has been decreed in their favour who are seeking execution of the decree by filing execution petition before the learned executing court. The present petitioner had filed an objection petition against the execution of the decree by contending therein that his son Muhammad Nadeem is the husband of respondent No,1 and father of respondents Nos, 2 and 3 and the decree for all intents and purposes is a decree against his son and not against the petitioner, therefore, the execution petition to his extent is liable to be dismissed. This objection petition was contested by the respondents and the learned executing court dismissed the objection petition vide order dated 29.11.2017. The appeal filed by the petitioner against the said order has been dismissed by the appellate court on 20.12.2017 by observing that order of dismissal of objection petition is an interim order and no appeal or revision lies against the same. The petitioner contends that as his objection petition has finally been dismissed, therefore, the order passed by the learned executing court dated 29.11.2017 cannot be treated as an interim order rather finality is attached to the same and, hence, appeal against the said order was maintainable which has wrongly been dismissed by the appellate court as not maintainable.
7. The moot point arises whether the impugned order dated 29.11.2017 was amenable to the jurisdiction of appellate court by way of filing an appeal. Section 14 of the Act provides as under:- 14.Appeals.- (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; and (b)to the District Court, in any other case.
(2)....
(3) No appeal or revision shall lie against an interim order passed by a Family Court."
From the perusal of section 14 it is observed that a decision given by the family court is appealable provided the said decision is not an interim order or a decision of interlocutory nature. Every order passed during the pendency of a family suit cannot be treated as an interim or interlocutory order if the said order finally determines an issue. Reliance in this regard may be placed on the judgment reported as Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others (1996 CLC 94), the relevant portion of which is reproduced below:- "Regarding the first question, I am of the opinion that every order passed by a Family Court during the pendency of a suit cannot be treated interlocutory, unless the nature of such order reflects so. To test whether an order passed on any application by a Family Court be treated interlocutory or not the Appellate Court must find out what possible orders could be passed by the Judge Family Court on such applications. If the nature of an order appears to be final then it may not be treated interlocutory.
In the light of above discussion, I am of the view that if an order of dismissal or allowance passed on an application in respect of any issue has finally decided the said issue, then such an order possesses the characteristic of finality notwithstanding the pendency or final disposal of the case on the basis of that order and an appeal against such an order would be maintainable.
If no final order regarding an issue has been passed on an application and the point raised by any party has been deferred for the time being, then such order, can be termed as "interlocutory".
It may not be out of place to mention that the words "Interlocutory" in its dictionary meaning means "not final or definitive", pronounced during the course of a suit pending final decision as "an interlocutory divorce decree." (Websters' New Universal Unabridged Dictionary). Therefore, an order passed on an application cannot be treated interlocutory if the Court has given a final or definitive decision on an issue relating to the maintainability of a suit or the jurisdiction of the Court."
8. In case reported as /mtiaz Ahmad Khan v. Mst. Aqsa Manzoor and others (PLD 2013 Lahore 241), the question for determination before the Court was maintainability of an Intra Court Appeal under section 3 of Law Reforms Ordinance, 1972 arising out of suit for maintenance and return of dowry articles on the ground that whether dismissal of application under section 11, C.P.C. would amount to an appealable decision in terms of section 14 of the Act or not. The Division Bench declared the dismissal of said application as 'a decision given' by observing as under: "The basic question to be resolved is, whether the order dated 12.11.2009 dismissing the petitioner's application seeking the dismissal of respondent's suit is a decision given or an interlocutory order, the two terms used in section 14 of the West Pakistan Family Courts Act, 1964.
The order dated 12.11.2009 impugned in the writ petition was passed on the application made by the applicant The question whether the court could try the subsequent suit when the earlier one had already been dismissed for want of evidence was finally decided vide the above referred order. No further order was to be passed on the said application. The order passed falls within the term of "a decision given". Reliance is placed on Rao Muhammad Owais Qarni v. Mst.
Tauheed Aisha and others (1991 MLD 1097). In view of the ratio of the referred judgment the order assailed in writ petition finally decides the application made by the appellant cannot be termed to be an interlocutory order. It is a decision given and is appealable. The instant Intra Court Appeal arising out of the proceedings whereby the law provides a remedy by way of an appeal or revision is not competent. This appeal is dismissed."
In Rao Muhammad Owais Qarni's case (Supra), the question before the Court for determination was whether the order of the trial court in allowing the application filed by a party to recall the witnesses of other party for the purposes of cross-examination would amount to 'a decision given' or not and whether it is appealable. The Court observed as under: "With regard to the question as to whether or not the impugned order of the learned Court was appealable, it seems that in view of the several decisions referred to by the parties it is almost settled that the word 'decision' used in section 14 of the Act does not include every interlocutory order of the Family Court, but covers only such orders as are passed under some provision of the Act and this, it appears, would imply the final or temporary determination of a matter forming part of some issue involved in the case. Applying this test, the order dated 6.8.1990 passed by the trial Court would, in my view, not be `decision' for purposes of section 14 of the Act and therefore, not appealable."
In Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others (2010 CLR 110), the petitioner wife had challenged the decision of the appellate court whereby her appeal had been dismissed as not maintainable in view of section 14 of the Act. The matter under consideration before the Court was that whether appeal would be maintainable against an order of the Judge Family Court allowing the husband to resile from his previous offer to decide the case on the basis of oath to be taken by the wife when the offer had been accepted and she was willing to take the oath. This Court observed as under: "The word "decision" not only covers the final judgment but also interlocutory order, therefore, in such situation, the appeal would be maintainable while having a look of a different meaning and definition is broad enough to cover both final judgments and interlocutory orders and although, it is some times limited to the sense of judgment and sometimes understood as meaning simply the first step leading to a judgment. Lastly, the word "decision" may include various rulings as well as orders.
In this case, the offer was made by the respondent to decide the lis on oath but subsequently backed out without any reason. Had the offer made by the respondent been materialized, the case would have been decided either way, therefore, it can safely be held that the act of the respondent is leading to a final judgment, therefore, in any case, it was a decision and the appeal was competent."
9. Keeping in view the afore-referred verdicts, the position of law that emerges is that appeal under section 14 of the Act is not barred against every interlocutory order and remedy of appeal, unless' specifically barred, would be available against a decision relating to a right or a remedy provided under the law subject to the condition that finality is attached to such an order or decision and nothing remains to be further decided between the parties on the said issue. In the present case, the executing court while dismissing the objection petition filed by the petitioner has finally determined the objections raised by him relating to the executability of decree against him and nothing else remained to be decided relating to the afore referred objections raised by the petitioner and the said order could not be treated as an interlocutory order simpliciter as the finality is attached to it. Thus the said order would amount to 'a decision given' in terms of section 14 of the Act, hence, an appeal against the same would be available before the appellate court.
10. In view of the above, appeal against dismissal of objection petition was maintainable in view of section 14 of the Act. Consequently, the order passed by the appellate court, dismissing the appeal as not maintainable, is not in accordance with the correct interpretation of law, hence, the order dated 20.12.2017 is set-aside and the matter is remanded to the appellate court for decision of the matter afresh where the appeal filed by the petitioner would be deemed to be pending. The parties shall appear before the appellate court on 04.06.2018, which shall decide the matter within a period of two months from receipt of the order of this Court.
11. This petition is allowed in the above terms.