Through this petition, the petitioner has impugned the orders dated 24.10.2018 and 14.12.2018, passed by the learned Judge Family Court / Executing Court - and the Additional District Judge Shujabad respectively, whereby permission was granted to the respondent No.3 to implead Mst. Asima Bibi (Minor), being a co-decree holder with the respondent No.3, which minor decree holder was not impleaded when execution application was filed.
2. The main grievance of the petitioner through this petition was the permission granted by learned Executing Court, vide order dated 24.10.2018, whereby it accepted application, filed by the respondent No.3 for seeking amendment in the execution petition, for incorporating name of co-decree holder, Mst. Asima Bibi (Minor), who was party to the Judgment and Decree dated 13.03.2017, as party to the execution petition against cost of Rs.200/.
The order of the learned executing court was upheld by the learned appellate court. Hence, instant petition.
The Judgment and Decree dated 13.03.2 017 is impugned through Writ Petition No.4898/2017, which is pending adjudication, wherein the minor was impleaded as party .
3. Learned counsel for the petitioner contends that no amendment could be allowed in the execution proceedings, hence, the orders impugned are without lawful authority and of no legal ef fect.
4. There is no dispute that Minor namely Mst. Asima Bibi is beneficiary of the Judgment and Decree dated 13.03.2017, along with respondent No.3 - unless said decree is set-aside or upset. The question seeking determination is that whether the executing court is vested with the authority / power to allow co-decree holder to be impleaded as party to the execution proceedings, when said decree holder was not impleaded as party initially. Upon deeper examination of section 17 of West Pakistan Family Courts Act 1964 (Act of 1964) it is evident that exclusion of Code of Civil Procedure 1908 ("code of 1908"), envisaged therein, is not applicable to the execution proceedings, which shall be regulated and proceeded with through Order XXI of code of 1908. The exclusion is only meant for matters in respect of the Part I of the Schedule thereof. Record revealed that execution application, in writing, was filed in terms of Order XXI Rule 2 thereof, wherein one of the decree holder was left-out. To appreciate the powers of the executing court, a reference is required to be made to Rule 17 of Order XXI, which reads as; "17. Procedure on receiving application for execution of decree - (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rule 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialed by the judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application; Provided that, in the case of a decree for the payment of money , the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.
5. It is clear that the executing court, in terms of Rule 17-ibid, is obligated to examine the execution application and allow amendment, if any defect is found therein - in terms of Rules 11 to 14 of Order XXI - and may dismiss application if no amendment is made pursuant to the direction. In this case, the executing court has not identified the defect of leaving out co-decree holder from the array of parties but allowed the same upon filling of an application seeking amendment.
Whether inaction or failure of the court to identify an obvious defect - whereby minor and beneficiary of the decree was not impleaded, could be made a ground to deny impleadment of minor as applicant, for the execution of the decree. The authority of the executing court cannot be undermined or narrowly construed to take-away an inherent power / authority to allow amendment to remove a defect - which is sought to be removed within the prescribed period of limitation and without any prejudice to the petitioner - when such authority is envisaged under Rule 17 of Order XXI of code of 1908. There is no embargo on the executing court to allow amendment in the execution, as long as it causes no prejudice and the intended amendment does not travel beyond the decree. A reference is made to judgment reported as ABBASUDDIN CHOWDHUR Y v. CHANDRA MOHAN CHOWDHUR Y AND OTHER S (PLD 1967 DACCA 512).
"The next and last point, which is raised in this appeal is, whether an amendment is permissible in an execution proceeding. To us it seems clear that there is no embargo upon granting of an amendment in execution proceedings. This proposition has been fully enunciated and discussed in the case of Nourangilal Marwari v. Sm.
Charubala Dasi (36 C W N 618). Sir John Rankin, C. J., in delivering the judgment of the Division Bench of that Court, has referred to such an argument as "a thing, which is almost ludicrous as an argument". In the said judgment he has referred to an oft-quoted decision of a Full Bench of that Court in the case of Asgar Ali v. Troilokya Nath (I L R 17 Cal. 631). It is obvious that that case has decided a point which has no bearing upon the question which confronts us in the present case. The aforesaid Full Bench decision is no authority for the proposition that an amendment is not permissible in execution proceedings. That decision is only a pronouncement relating to Order XXI, rule 17, of the Code of Civil Procedure, sub- rule (1) of which runs thus "(1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requiremen ts of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it. If the defect is not remedied within the time fixed the Court may reject the application."
It would be clear that the requirement of Order XXI, rule I7( I), is that a Court is required to examine an application for execution to see whether the requirements of rules II to 14 of that Order have been complied with by the applicant. This enquiry must be done prior to the admission or registration of the application under Order XXI, rule 17(1). The Court may allow the applicant time to remedy the defect, if any, noticed by it in the application. This means that the Court is at liberty to allow an amendment with regard to defects in observance of rules II to 14 and such amendment may be allowed prior to the registration of the application because it is the duty of the Court to reject an application where the formalities required by rules 11 to 14 are not complied with. The essence of the Full Bench decision seems to be that once an application is registered and the execution case proceeds, then no amendment under Order XXI, rule 17(1) can be made because the applicant has, to quote a popular phrase, missed the bus. This seems to be the distinctive feature of the aforesaid Full Bench decision. Sir John Rankin, C. .1. in Nourangilal Marwari's case is also of the same opinion. But this is tar from saying that no amendment is permissible in respect of an execution application. Only amendments with a view to comply with Order XXI, rule 17(1) must be made before the application is registered, because non-compliance with the terms of Order XXI, rule 17(1) must lead otherwise to the rejection of the application.
Hassan, J., in deciding the Second Miscellaneous Appeal in this Court has also taken the same view. We are in agreement with the view expressed by Hassan, J., for reasons indicated above.
To sum up, we may observe that the execution case having been filed within three years from the date when the last execution proceeding was dismissed, was within time because the judgment-d ebtor died alter the institution of the execution proceedings which were dismissed on the last occasion. Order XXII, rule 12 (sic) of the Code of Civil Procedure, does not apply to execution proceedings. It cannot be contended that in no case there can be an amendment of an application for execution after it has been registered. [Emphasis added]
6. No illegality or jurisdictional defect is found in the orders impugned. It was not the case of the petitioner that court highlighted defect of missing one of the co-decree holder and passed any order for removal of such defect.
Notwithstanding, that order VI Rule 17 of code of 1908 would not apply but authority of executing Court to allow removal of defects can be exercised by such Court, which is done by way of amendment. Reference is made to judgment reported as "POPULAR INDUSTRIES COMMERCIAL AGENCIES, KHAIRPUR v. KHAIRPUR TEXTILE MILLS LTD." (PLD 1972 Karachi 617). The intent and objective to deny fruits of decree to minor - who happens to be a daughter of the petitioner - is mischievous and lacking bona-fides, hence, there is no reason to exercise discretion when no prejudice is caused to the petitioner and substantial compliance has been done by the executing court, which is rightly endorsed by the appellate court.
7. In the circumstances, the orders dated 24.10.2018 and 14.12.2018 do not call for any interfere in the exercise of the judicial review jurisdiction.
8. In view of the above, this petition is without any merit and same is, therefore, dismissed.