MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 validity of the order/judgment of the learned courts below dated 22.12.2016 and 15.05.2017 has been impeached. Through the former learned Executing Court dismissed his objection petition and through the latter the learned Appellate Court dismissed his appeal filed against the order of the learned Executing Court.
2. Learned counsel for the petitioner contends that both the courts below committed material illegality and irregularity while passing the impugned order/judgment; that the learned Executing Court has failed to adopt the due procedure envisaged in Order XXI Rules 54, 64, 66, 67, 68, 69, 72, 82, 83, 90, 92 of C.P.C. before initiating auction proceedings; that no notice was served upon the petitioner before issuance of proclamation which is violation of mandatory provision of Order XXI, Rule 66 of C.P.C.; that petitioner has deposited the entire decretal amount, therefore, the property of the petitioner could not be auctioned; that both the courts below have failed to take into consideration these important aspects of the matter while passing the impugned order/judgment.
3. On the converse, learned counsel for respondent No,1 submits that the impugned order/judgment are well reasoned; that provisions of C.P.C. are not applicable in the family matters; that under section 13(3) of the West Pakistan Family Courts Act, 1964 the Family Court is vested with powers to adopt its own procedure for the satisfaction of the decree; that entire proceedings of auction were well within the knowledge of the petitioner.
4. Arguments heard. Record perused.
5. The petitioner complained violation of various provisions of C.P.C. while adopting auction proceedings but he remained oblivious of the fact that according to Section 17 of the Act ibid the provisions of Qanun-e-Shahadat Order, 1984 and the Code of Civil Procedure, 1908 except sections 10 and 11 are not applicable in the family disputes. A complete procedure for enforcement of 13 of the Act ibid. Subsection (3) of said section reads as under:-- "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, [not exceeding thirty days "1 the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree holder."
6. Bare reading of the above provision makes it abundantly clear that for enforcement of a money decree the learned Executing Court is empowered to recover the decretal amount as arrears of land revenue. In the West Pakistan Land Revenue Act there are various modes for recovery of land revenue are provided and one of the mode is to sale out the property of the defaulter which was adopted by the learned Executing Court in the present case. Therefore, referred procedural provisions of C.P.C. and technical trappings provided in the C.P.C. are not to be followed by the Family Court in execution of a money decree. Reliance A is placed on case reported as Amjad Iqbal v. Mst. Sohail (2015 SCM R 128).
7. Even otherwise, if the provisions of C.P.C. are pressed into service even then the Rules 89 and 90 application for setting aside of a sale certificate can be filed within 30 days from the date of knowledge but the petitioner has failed to file the same, therefore, according to Order XXI, Rule 92 the sale certificate became absolute and the only remedy available for the petitioner was to file appeal against the said sale but he instead of availing the procedure provided in the C.P.C. filed objection petition which was not maintainable as such both the courts below were fully justified in dismissing the same.
8. So far as the contention of the petitioner that he has deposited the entire decretal amount is concerned, the conduct of the petitioner is very much relevant in this regard. The decree of maintenance allowance of his minor children pertains to the year 2007 but he did not bother to pay even a single penny rather choose, to remain in civil prison for a year. Thereafter, when the respondent/ decree holder collected proof regarding ownership of his property and submitted before the learned Executing Court he very daringly refused to accept his ownership of the property, therefore, the learned Executing Court appointed a commission to ascertain ownership of the said property and the owner of the said property. The petitioner did not file any objection on the report of local commission despite granting opportunity by the learned Executing Court. Thereafter, the learned Executing Court initiated procedure for attachment of the said property: At this juncture, the petitioner brought one Ammar Khan on the scene who by filing objection petition claimed himself to be the -owner of the attached 'property, whose objection petition was dismissed by the learned Executing Court and an opportunity was granted to the petitioner to pay the outstanding decretal amount within ten days but even at that stage the petitioner did not take any heed to make payment of the decretal amount. After about nine years of passing of the decretal amount, when the sale became absolute the petitioner deposited the decretal amount with the intend& to frustrate the auction proceedings as such at this belated stage when pursuant to the execution proceedings the sale has become absolute the deposit of decretal amount by the petitioner now cannot be taken into consideration. It is also important to note that for years the petitioner has been trying to pose that he was incapable to pay maintenance to his children but when his property was put to action for recovery of outstanding decretal amount, which leads to an irresistible conclusion that he was capable to pay the maintenance allowance to the minors according to the decree but deliberately and intentionally left them to starve. person showing such a callous attitude towards discharge of his parental obligation is not entitled for any discretionary relief. Reliance is placed on case reported as Muhammad Arif v. Uzma Afzal and others 2011 SCM R 374 wherein it has been laid down as under:-- "There is no cavil to the proposition that the "conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in, his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim "he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High. Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement."
9. view of the above, this court in the exercise of its Constitutional jurisdiction under Article 199 is not inclined to grant discretionary relief to the petitioner in view of his conduct in performance of his moral as well as legal obligation towards his children and so also for trying to frustrate the court proceedings for such a long time. Dismissed.