SHAKIL-UR-REHMAN KHAN, J:- The brief facts leading to the filing of the instant writ petition are that vide judgment and decree dated 14-9-2015, the learned Family Court, partially decre ed the suit filed by respondent Nos.1 and 2 in the following manner:- "i. Claim of plaintiff no.1 for recovery of dowry articles is dismissed. ii. The plaintif f no.1 is entitled for recovery of delivery expense at the rate of Rs.8000/- from the defendant. iii. Claim for maintenance allowance of plaintif f no.1 is dismissed. iv. Claim for maintenance allowance of plaintif f No.2 is decreed at the rate of Rs.7000 from 08.12.2008 uptill legal entitlement with 10% annual increase."
Both the parties i.e. petitioner as well as the respondent Nos.1 and 2 filed sepa rate appeals against the same which were decided vide consolidated judgment & decree dated 30.8.2016 in the following terms:- "16. For what has been discussed above, both the appeals are partially accepted and impugned judgment and decree is modified to the effect that the appellant No.1 is held entitled to recover maintenance allowance at the rate of Rs.4000/- per month from April, 2008 till divorce and at the same rate for the period of Iddat whereas maintenance allowance of minor appellant No.2 is reduced from Rs.7000/- to Rs.5000/- per month from the date of her birth i.e. 8.12.2008 till she is legally entitled with 10% annual increment. The first increment will take effect from January, 2017. Remaining claims in both the appeals are dismissed. No order as to cost. Copy of this judgment be also placed in connected appeal."
The petitioner challenged the said judgme nts & decrees through Writ Petition No.2705/2016 which was decided in terms of order dated 24.5.2017 in the following terms:- "This petition calls into question decrees of the learned Courts below whereby maintenance allowance of respondents No.1 and 2 was determined.
2. During the course of arguments learned counsel for the parties entered into compromise and jointly submit that the petitioner has already deposited Rs.25 0,000/- out of the decretal amount with the Deputy Registrar (Judl) of this Court; that by allowing C.M.No.83 of 2017 the Deputy Registrar (Judl) be directed to pay Rs.250,000/- to respondents No.1 and 2 after due verification and proper receipt; that petitioner be directed to pay a further amount of Rs.150,000/- to respondents No.1 and 2 within three months from today for the full and final satisfaction of the decree; that on payment of Rs.150,000/- within three months by the petitioner the decree would stand satisfied otherwise the decree of the learned Courts below shall stand revived and respondents No.1 and 2 shall have a right to get it executed; and, that in terms of above this petition be disposed of.
3. Order accordingly ."
In view of the above, the petitioner / judgment debtor got paid the sum of Rs.150,000/- and the following order was passed on 29.9.2017 by the learned Executing Court:- "Learned counsel for the judgment debto r states that they are ready to pay Rs.1,50,000/- to the decree holder as per direction of Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi, in writ petition No.2705/2016 dated 24.05.2017. The father of the judgment debtor has paid amount of Rs.1,50,000/- to the father of decree holder who received the same and endorse his thumb impression and signature in token of the receipt of said amount.
2. Learned counsel for the decree holder maintained that in the light of direction of Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.05.2017 the instant decree has satisfie d. I have perused the order of Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.05.2017 pass ed in writ petition No.2705/2016 vide above said order the Hon'ble court directed the judgment debtor as follows:- "That petitioner be directed to pay a further amount of Rs.1,50,000/- to respondents No.1 and 2 within three months from today for the full and final satisfactio n of the decree; that on payment of Rs.1,50,000/- within three months by the petitioner the decree would stand satisfied otherwise the decree of the learned Courts below shall stand revived and respondents No.1 and 2 shall have a right to get it executed."
3. Perusal of the above said direction of Hon'ble Lahore High Court, Rawalpindi Bench Rawalpindi clearly give the direction to the judgment debtor to pay Rs.1,50,000/- to decree holder within three months from today i.e. 24.05.2017 which means that the period of three months has reckoned on 24.08.2017.
4. As per record the judgment debtor has badly failed to comply the direction of Hon'ble Lahore High Court, Rawalpindi Bench Rawalpindi in its letters and spirits. As the judgment debtor has failed to comply the direction of Hon'ble Lahore High Court, Rawalpindi Bench Rawalpindi vide order dated 24.05.2017. Therefore, in the light of the said order now the decree of trial court shall stand in field and same shall be executed.
Now to come up for further payments for 03.1 1.2017."
The above noted order dated 29.9.2017 was challenged through appeal which was dismissed vide judgment & decree dated 20.11.2017. The petitioner / judgment debtor has challenged the order dated 29.9.2017 as well as judgment & decree dated 20.1 1.2017 through the instant writ petition.
2. Learned counsel for the petitioner stated that a compromise had been entered into by the petitioner and the respondent Nos.1 and 2 whereby it was agreed that a sum of Rs.1,50,000/- when paid shall be taken as full and final settlement of decree dated 30.8.2016 and it had to be paid within three months and on the basis of the said compromise, the Writ Petition No.2705/2016 was disposed of; he stated that the petitioner / judgment debtor immediately contacted respondent Nos. 1 and 2 for paying the said amount but they insisted to receive it in the learned Executing Court. The father of the said respondent No. 1 did not turn up before the learned Executing Court on 09.6.2017 and 14.7.2017 and the case was adjourned to 29.9.2017 due to the summer vacations in the month of August; he further pointed out that the respondent Nos.1 and 2 had also submitted a schedule of payment and the execution proceedings were adjourned for the reply thereto and the matter was fixed for 29.9.2017; he added that the real father of the petition er / judgment debtor , in his capacity as attorney offered to pay the said amount and the father of the respondent No.1, in the presence of his counsel, without any objection received the same. Moreover , the learned counsel for the decree holder made a statement before the said learned Executing Court to the effect that, in the light of the direction of the Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.5.2017 the instant decree has been satisfied; he vehemently argued that in view of the above circumstances and the statement of the learned counsel for the decree holder , the execution petition should have been disposed of but unfortunately the learned Executing Court revived the decree dated 14.9.2015; he next contended that the petitioner / judgment debtor challenged the said order dated 29.9.2017 in appeal which was unfortunately dismissed vide judgment & decree dated 20.1 1.2017, hence this writ petition.
His first objection was that learned District Court committed an illegality by issuing a decree sheet in execution proceedings, which was not only illegal but also amounts to issuing two decrees in one suit; he further contended that the payment was made and received in accordance with the direction of this Court and the offer was accepted by the father of the respondent Nos.1 and 2 without any objection and with free will. Moreover , no objection regarding alleged delay was raised by the father of respondent Nos.1 and 2 or their learned counsel and that they never insisted for execution of the decree; he then threw the challenge to the order dated 29.9.2017 and contended that the same is not sustainable in the eyes of law because the respondent Nos.1 and 2 alongwith their counsel made a statement about the satisfaction of the decree but unfortunately the learned Courts below are bent upon to execute a decree which stands satisfied with the concurrence of the contesting parties; he then contended that the learned Executing Court as well as the learned appellate Court lost sight of the fact that in the earlier round vide judgment & decree dated 30.8.2016 the judgment & decree of the learned trial Court dated 14.9.2015 was modified but unfortunately both the learned Courts below are now putting in their efforts to execute the decree dated 14.9.2015; he further stated that the impugned order and the judgment & decree cannot supersede the order dated 24.5.2017 passed in W.P. No.2705/2016. The said learned Courts below lost sight of the fact that only the decree of the learned appellate Court dated 30.8.2016 had been challenged in W.P.
No.2705/2016; he further contended that, without conceding mere delay if any could have been easily condoned in view of the fact that regular periodical payments were being made by the petitioner / judgment debtor without any fail after the order passed by this Court, that too, had an objection been raised regarding limitation of 3 months by the decree holders / respondent Nos.1 and 2; he then stated that, again without conceding the delay, if any was beyond the control of the petitioner / judgment debtor due to long adjournment for summer vacations and the insistence of the respondent Nos.1 and 2 to receive the requisite amounts in the Court. His next argument was that both the learned Courts below have exercised their jurisdiction with material irregularities, illegalities and the same are based on surmises and conjectures as well as result of mis-reading of the material on record. Today , he also placed the certified copy of the order sheet of the learned Executing Court, on record. The learned counsel for the respondent Nos.1 and 2 has also seen the same and has no objection if the same is taken on record of the instant case. Learned counsel for the petitioner then pointed out that on 09.6.2017 and 14.7.2017 the father of the respondent No.1 was not present and the matter was fixed for 29.9.2017 but this aspect of the matter was not taken into consideration while passing the impugned order and the impugned judgment & decree challenged before this Court through the instant writ petition. He further explained that the delay was only due to the Holidays and therefore, the time period fixed by this Court through the order of the earlier writ petition could not be complied with, particularly when respondent Nos.1 and 2 wanted to collect said amount only in Court; he further contended that the decree holder had not challenged the said aspect of the matter before the learned Executing Court and had they challenged it, the petitioner / judgment debtor would not have deposited the said money .
3. Learned counsel for the respondent Nos. 1 and 2 states that the petitioner / judgment debtor is not paying the future maintenance since last three months. He further stated that the petitioner / judgment debtor never offered the said amount of money , out of Court and that the father of the said respondent No. 1 is not her attorney in the execution proceedings.
In rebuttal the learned counsel for the petitioner / judgment debtor argued that all the points raised by the learned counsel for the respondent Nos.1 and 2 are at best factual controversies.
4. I have heard the learned counsel for the parties and gone through the record with their able assistance.
5. It transpires from the record that the suit for recovery of dowry articles or their price in the alternative, recovery of delivery expenses of respondent No.2, recovery of maintenance allowance of respondent No.1, recovery of maintenance allowance of respondent No.2 with annual increase and recovery of maintenance allowance for Iddat period of the respondent No.1 was partially decreed vide judgment & decree dated 14.9.2015. The appeals filed by the petitioner as well as respondent Nos.1 and 2 were decided vide judgment & decree dated 30.8.2016. The learned appellate Court partially accepted both the appeals while modifying the judgment & decree dated 14.9.2015 passed by the learned Family Court as noted above in detail. The petitioner had earlier challenged the same through a Writ Petition No.2705/2016 which was decided in terms of order dated 24.5.2017, as noted above.
It is also necessary to note here that the respondent No.1 and the petitioner were married on 23.3.2007 and Rukhsati took place on 28.3.2007. Subse quently , the petitioner went to Australia in June 2007. In March 2008, he came back to Pakistan and in April 2008 the respondent No.1 was expelled from his house. Respondent No.2 was born on 08.12.2008 and respondent No.1 was divorced on 16.02.2012. The above noted suit was filed by the respondent Nos.1 and 2 on 10.7.2012. This suit was decreed to the extent of delivery expenses at the rate of Rs.8,000/- and the maintenance allowance of the respondent No.2 was decreed at the rate of Rs.7,000/- from 08.12.2008 uptill her legal entitlement with 10% annual increase. The learned appellate Court vide judgment & decree dated 30.8.2016, while upholding the judgment & decree of the learned Family Court, modified the same and held that the respondent No.1 is also entitled to recover maintenance allowance. However , it reduced the maintenance allowance of the minor / respondent No.2 from Rs.7,000/- to Rs.5,000/- per month.
On the other hand, this Court vide order dated 24.5.2017 passed in Writ Petition No.2705/2017 noted the terms and conditions of the conditional compromise between the parties. The main condition for the said full and final satisfaction of the decree was the payment of Rs.150,000/- within three (3) months by the petitioner , otherwise the decrees of the learned Courts below were to stand revived.
6. In this view of the matter and the arguments of the learned counsel for the parties, it is imperative to note the relevant statutory provisions relating to a money decree passed by the learned Courts below . The relevant provision being Section 13 of the Family Courts Act, 1964 provides as follows: - "13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register .
(2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment or the delivery of property , as the case may be, in the aforesaid register .
(3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court not exceeding thirty days, 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 .
(4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order , direct.
(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit."
7. The Family Court Rules, 1965 framed under the Section 26 of the Family Courts Act, 1964 provides as follows:- "16. In every suit, on passing the judgment, a decree shall be drawn up in Form I and shall be signed by the presiding Judge. The decree shall bear the seal of the Court.
17. The Court shall maintain a register of decrees and orders in the form prescribe d for decrees and orders under the Code of Civil Procedure, 1908.
18. Whenever any fine is paid under section 15 or section 16 or money or property is deposited with or realized by the Court under the Act or these rules, a receipt shall be given in Form II which shall be serially numbered and the counterfoil thereof shall be kept in the Court.
19. All fines, monies, or property deposited or realized and disbursed by the Court shall be entered in a register in Form III.
20. Where the Court receives any amount payable to a party it shall cause a notice thereof to be served on the' party entitled to receive it and shall pay it to the party concerned within four days, so far as may be of his applying therefor ."
A joint reading of the above go to show that a special procedure has been laid down for the purposes of executing a money decree passed under the Family Courts Act, 1964.
8. I have carefully considered the contentions of the learned counsel for the petitioner but in view of the record and the conduct of the petitioner, cannot accept the same. Even if it is accepted that the father of the respondent No.1 had insisted to receive the said amount of Rs.150,000/- before the learned Executing Court, and he subsequently failed to appear before the learned Executing Court on 09.6.2017 and 14.7.2017, the said amount could have been easily deposited before the learned Executing Court in compliance of the conditional compromise reflected in the order dated 24.5.2017 of this Court. The order sheet placed on record today by the learned counsel for the petitioner and not objected to by the learned counsel for the respondent Nos.1 and 2 clearly show that on 09.6.2017 the case was simply adjourned to 14.7.2017 for making the payment. This order was passed in the presence of the learned counsel for the parties. On 14.7.2017, again the learned counsel for the parties were present and a schedule for payment was submitted by the learned counsel for the respondent Nos.1 and 2 / decree holders and the case was adjourned to 29.9.2017 for filing reply to the same.
It would not be out of place to mention here that the decretal amount that is to be paid according to the judgments & decrees of the learned Family Court and the learned appellate Court include:-
(i) Rs.8,000/- for the delivery expenses of the respondent No.2;
(ii) Maintenance allowance of the respondent No.1 at the rate of Rs.4,000/- from April 2008 to 16.02.2016, that is the date when she was divorced and at the same rate for the Iddat period; and
(iii) Maintenance allowance of respondent No.2 at the rate of Rs.5,000/- from 08.12.2 008 till she is legally entitled with 10% annual increment and the first increment was to take ef fect from January 2017.
Keeping in view the above and more importantly the fact that the conditional compromise was not fulfilled by the petitioner within the stipulated period and irrespective of the fact that the father of the respondent Nos.1 and 2 as well as their counsel had taken the sum of Rs.150,000/- on 29.9.2017 without any objection did not debar the learned Executing Court from applying its mind to the terms of the conditional compromise entered into by and between the parties before this Court on 24.5.2017. Reliance is placed on the case of Waheed Anwar Vs. Additional District Judge and others (2017 YLR 827) wherein the constitutional petition was dismissed for the reason that the conditional compromise was not followed in letter and spirit and as a consequence the decree was held to be executable. I am also surprised to note that the petitioner being the father of the minor through his counsel contended that had the other side challenged the delay in making the payment, the petitioner / judgment debtor would not have deposited the said money . The conduct of the petitioner also disentitles him of the discretionary relief under the constitutional jurisdiction. It is also incorrect on his part to argue that the learned Courts below are adamant to execute the judgment & decree dated 14.9.2015 passed by the learned Family Court.
In this regard, it is reiterated that the judgment & decree dated 14.9.2015 passed by the learned Family Court was upheld but modified vide judgment & decree dated 30.8.2016. Therefore, the same is not dead document. The conditional compromise was probably a one-time window for the petitioner to once and for all wriggle out of his responsibilities, particularly towards his minor daughter . I cannot help but to express my surprise to the terms and conditions of the same. The question is that how can a father shirk of his respon sibilities towards the minor and who could have agreed on her behalf allowing the father to do so. In any case, even if the conditional compromise as reflected in order dated 24.5.2017 was to be followed / implemented, the petiti oner can only blame himself for not making the requisite payment within the stipulated period of three (3) months. In such view of the matter , the arguments of the learned counsel for the petitioner are of no consequence. It is the moral as well as legal responsibility of the petitioner to provide for his daughter till her legal entitlement. The petitioner due to his conduct has now missed the bus.
There is yet another aspect that needs consideration. It is noted from the judgment & decree dated 30.8.2016 passed by the learned appellate Court about the conduct and status of the petitioner as follows:- "12. As far as status of respondent is concerned, it is transpired from the file that neither the appellant nor the respondent had appeared in person before the court and both of them had produced evidence through special attorney . It is also evident from the file that no direct evidence has been tendered by the appellant to establish the financial status of the respondent but this fact is established from the file that the respondent is residing abroad in Australia. Although the respondent has contended that he is in Australia for the purpose of getting education but this is also very much clear from the record that he has completed his certificate in Printing and Graphic Arts which means that he had completed his higher education in Australia in 2009. The statement of the respondent was recorded in the year 2015 being DW.01 wherein it is evident that the respondent remained in Australia till 11.2.2015 and no reason has been provided that why he is living abroad despite completing his education which depicts that he is there just to earn his livelihood. Even otherwise, the respondent had gone abroad for getting higher education that too is sufficient to establish that he is financially a very strong person, because in our society an ordinary man cannot afford such sort of blessing in shape of Higher Education. Although the appellant has failed to establish that the respondent is earning Rs. 1,50,000/- but keeping in view the status of both the parties, the appellant No.1 is held entitled to recover maintenance allow ance at the rate of Rs.4000/- per month from April, 2008 till divorce and at the same rate for the period of Iddat.
13. As far as minor daughter appellant No.02 is concerned, it is claim of the appellant through her appeal that the maintenance fixed by the trial court is not in accordance with status of the respondent & is meager one, whereas the respondent contended that he is merely a student at Australia and cannot pay the granted maintenance allowance which should be reduced. From perusal of record it is evident that no direct evidence has been tendered by the appellant to establish financial status of the respondent. It is already discussed in the preceding paragraph that the minor was born in the house of parents of appellant No.1 during the period of Ghair Abadi, therefore, there is no justification to allow the appeal of the respondent regarding reduction of period of maintenance allowance as same has been proved and established through evidence of the respondent. As far as quantum of maintenance allowance is concerned, there is no sufficient evidence available on the file to establish that the respondent is a man of strong financial resources to pay maintenance allowance as claimed by the appellant. Even otherwise, age of the minor at present is almost eight years and there is nothing on the file to establish the monthly expenditure of the minor as no receipt of school or otherwise has been produced by the appellant to establish the monthly expenditure of the minor, therefore, quantum of maintenance allowance of the appellant No.01 is reduced from Rs.7000/- to Rs.5000/- per month from the date of her birth i.e. 8.12.2008 till she is legally entitled with 10% annual increment. The first increment will take effect from January, 2017 & the decree/judgment of learned trial court is modified accordingly."
The record shows that nothing was placed on record before the learned Courts below regarding the monthly expenditure of the minor , particularly regarding schooling expenses etc. and keeping in view the same, the quantum of maintenance allowance was reduced from Rs.7,000/- to Rs.5,000/- per month by the learned Appellate Court while modifying the judgment & decree passed by the learned Family Court. The record also shows that the petitioner went to Australia for his higher education and it is noted from the record that after having completed his education there, he is now working there. This aspect has been specifically noted by the learned appellate Court in its judgment & decree dated 30.8.2016.
The Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Asim and others Vs. Mst. Samro Begum and others (PLD 2018 SC 819 ) has held as under:- "6. That as regards the learned counsel's contention that the earnings of the Muhammad Asim are not known, we deprecate this attempt at intentional non-disclosure. Muhammad Asim is employed by PAEC but elects not to disclose his position or salary; he thus seeks to take advantage of his own willful non-disclosure. Where a husband is required to maintain his wife, former wife during her iddat period or child and is required to pay maintenance, including the arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status determines the amount of maintenance that should be awarded. In case of non disclosure an adverse inference can be drawn against him. Family judges should try to ascertain the salary and earnings of the husband/father who is required to pay maintenance. Muhammad Asim did not disclose his salary and earnings but considers the maintenance that has been awarded to be excessive. However, willful non-disclosure of his earnings suggest that the maintenance amount is well within his means; his conduct further betrays that he does not want to be fair and has unnecessarily embroiled his former wife and child in needless litigation. The only objective for assailing the judgment of the Appellate Court and then of the High Court has been to starve the needs of his own child and the legal dues of his former wife. This is unconscionable and inexcusable."
It would not be out of place to note here that sub-section (4) of Section 17-A of the Family Courts Act, 1964 provides as follows:- "17A. Suit for maintenance. - (4) For purposes of fixing the mainten ance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant."
In such view of the matter the statutory provision empowers the Family Courts to put in serious efforts while utilizing its said power in order to determine not only the estate but also the resources of the defendant, for the purposes of fixing the maintenance, in each and every case.
In view of the case reported as Abdul Khaliq Vs. Sidra Khaliq and 3 others (2017 CLC 487), the Family Court can be approached for enhancement of the maintenance allowance of the minor by way of filing an appropriate application supported by the relevant documents, if any to ensure that she is provided proper education and her other needs. In the above background, the order dated 29.9.2017 passed by the learned Executing Court as well as the judgment dated 20.1 1.2017 are not liable to be interfered with under the constitutional jurisdiction.
The record shows that there is no effort, none whatsoever, on the part of the petitioner / judgment debtor to comply with the terms and conditions of the conditional compromise entered into by him voluntarily for the purposes of depositing the said amount of RS. 1,50,000/- within the period of three months. It is also evident from the record that the date before which this had to be done was fixed in the presence of the learned counsel of the Judgment Debtor. It is a commonly known fact that the learned lower courts observe holidays in the month of August every year. Such time period was fixed with consent of the parties in the presence of their learned counsel and they knew well what they were agreeing to, in terms of the timeline. Now they cannot be allowed to wriggle out of the same more so for the reason that the matter is governed by the Family Courts Act, 1964, the purpose of which has been very clearly laid down by the Honourable Supreme Court of Pakistan in the case reported as Saif- ur-Rehman Vs. Additional District Judge, Toba Tek Singh and 2 others (2018 SCMR 1885) wherein it was held that a special forum in the shape of Family Courts with special procedure has been made for expeditious settlements and disposal of disputes relating to marriage and family affairs. It was further noted that purposive rather than literal approach to the interpretation has to be adopted while interpreting statutes and therefore, the interpretation which advances the purpose of the Act is to be preferred rather than the interpretation which defeats its objects.
9. In view of the above, instant writ petition is dismissed being devoid of any force. Learned Executing Court is directed to proceed with the execution application in accordance with law .