RAZA ALI KHAN, J.----Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is prayed for: "It is therefore, very humbly prayed that while accepting the instant writ petition the order passed by the learned Non-petitioner No.1 dated 09.11.2018 may kindly be declared null and void ab-initio, having no force of law and further may kindly be directed to the learned Executing Court/Non-petitioner No.1 to execute the decrees of dower and maintenance dated 19.1 1.2016 in accordance with law mentioned herein."
Precise facts of the case are that respondent No.2 herein, filed application for execution of decrees dated 19.11.2016 before Additional District Judge/Judge Family Court Hajira on 31.08.2018. The learned Court below vide impugned order dated 09.11.2018, ordered the petitioner to pay, besides the decretal amount, Rs.5,00,000/- in light of agreement dated 02.04.2014 which is illegal, arbitrary and beyond the scope of Executing Court.
The learned Advocate appearing for the petitioner reiterated the grounds taken in the writ petition and submitted that as per decree sought to be executed, the plaintif f/respondent No.2 was declared entitled to the dower Rs.44,445/- but the Court below illegally vide impugned order dated 09.11.2018, directed the petitioner to pay Rs.5,00,000/- in light of agreement dated 02.04.2014 as additional dower . The learned Advocate further argued that the Court below was not competent to enhance, the dower amount suo motu. The learned Advocate in support of his submissions placed reliance on the following case law:
1. 2016 YLR 1836 .
2. 2017 CLC Note 101, p.1 13 The learned Advocate appearing for respondent No.2 argued that decree dated 19.11.2016 was passed on the basis of compromise between the parties and in light of agreement dated 02.04.2014, it was agreed between the parties that if the defendant without any reason divorces the plaintif f, he shall be bound to pay Rs.5,00,000/- as additional dower . The learned Advocate further contended that under Section 287 of the Mohammadan Law, dower can be increased even after marriage, therefore, the Court below rightly passed the impugned order .
I have heard the learned counsel for the parties and gone through the record of the case.
It may be stated that the petitioner has challenged the impugned order only to the extent of Rs.5,00,000/- ordered by the Court below to pay in light of agreement dated 02.04.2014 as additional dower . A perusal of the record reveals that the learned Additional District Judge/Judge Family Court Hajira passed decree dated 19.11.2016 for payment of dower in the following terms: {{URDU TEXT}} The above reproduced paragraph reveals that the plaintif f was declared entitled to dower Rs.44,445/- in shape of 2 1/2 tola gold ornaments. The Court below did not declared that if the defendant divorces the plaintif f without any reason, she shall also be entitled to Rs.5,00,000/- in light of agreement dated 02.04.2014. It is well settled principle of law that the Executing Court has to execute the decree as it is and cannot go beyond it. My this view lends support from case titled "Azad Jammu and Kashmir Board of Intermediate and Secondary Education, Mirpur through Chairperson and 3 others v. Abdul Qayyum Qamar" [PLD 2003 SC (AJ&K) 14], wherein at page 18 of the judgment, it has been observed as under: "A decree passed by the Civil Court is either to be challenged by the opposite party or in case of its finality , is to be acted upon according to the terms and conditions laid down in it."
Moreover , if for the sake of arguments, it is accepted that the agreement dated 02.04.2014 is correct and the parties are bound to implement the same even then it is to decide that the defend ant divorced the plaintif f without any reason or he had any reason to divorce the plaintif f. In' my considered view, the Court below while passing the impugned order travelled beyond the scope of Executing Court and decree dated 19.11.2016, sought to be executed which is not maintainable.
In view of above, this writ petition stands accepted and the impugned order to the extent of payment of Rs.5,00,000/- as additional dower in light of agreement dated 2-4-2014 is set aside. The Court below shall pass fresh order on the application of respondent No.2.