MUZAMIL AKHT AR SHABIR, J.----Through this constitutional petition, the petitioner has called in question the order dated 13.12.2018 passed by the revisional court, whereby the revision petition filed by the petitioner was dismissed and the order of the trial court dated 21.07.2018, whereby two applications filed by the petitioner were dismissed, was upheld.
2. The brief facts of the case' are that respondents Nos.3 to 5 filed a suit for recovery of maintenance allowance against Muhammad Ashraf, respondent No.6/judgment-debtor ("respondent No.6") which was decreed on 23-9- 2011 and executing petition is pending adjudication before the executing court. During execution proceedings, the petitioner stood surety for respondent No.6, who had disappeared later on. With the efforts of the petitioner , respondent No.6 was produced before the executing court and was sent to civil prison. The learned executing court vide its order dated 05.04.2017 issued a direction to the petitioner to pay the decretal amount. The petitioner filed two applications, one for setting aside the order dated 05.04.2017 and the second for summoning father of respondent No.6 to court to satisfy the decree. Both the applications were dismissed vide order dated 21.07.2018.
Feeling aggrieved of the said order , the petitioner filed a revision petition which was also dismissed vide order dated 13.12.2018 passed by learned Addl: District Judge, Shorkot. Both the afore referred orders dated 21.07.2018 and 13.12.2018 are under challenge by filing instant petition.
3. Learned counsel for the petitioner has argued that father of respondent No.6 is a landlord and is in a position to satisfy the decree passed by the trial court; that the petitioner stood surety for respondent No.6 on humanitarian ground without deriving any benefit; that the impugned orders are against the law and result of misreading and non-reading of material available on record, therefore, are liable to be set-aside.
4. Learned Law Officers and learned Amici Curiae have maintained that once having stood as surety for payment of decretal amount, the petitioner cannot be absolved from satisfying the decree without consent of the decree holder or substitution of surety bond with leave of the court merely on the ground that the grandfather of the minors being in af fluent circumstances is duty bound to maintain the minors.
5. Heard. Record perused.
6. The moot point before this Court is that whether the petitioner , having stood as surety for respondent No.6, could absolve himself from his liability to pay the decretal amount on the grounds that he had got the respondent No.6 arrested, who was sent to civil prison for one year and respondent No.7 in affluent circumstances being grandfather of minors is obliged to maintain the minors, therefore, the decree be executed against his property .
7. The minors obtained decree for maintenance allowance against their father/resp ondent No.6 on 23.09.201 1 and during execution proceedings, the petitioner stood as his surety vide order dated 19.11.2015. Subsequently , the respondent No.6 without making payment of decretal amount disappeared from the court and his warrants of arrest were issued on 27.11.2015, 11.12.2015, 15.01.2016, 19.02.2016 and 19.03.2016, on which date, the court while issuing warrants of arrest of respondent No.6 directed the decree holders to provide details of property of the surety/petitioner . The same order was repeated on various dates whereafter vide order dated 30.07.2016 the court issued orders to decree holders to provide details of property of the petitioner and his address so he may be arrested for satisfaction of the decree. On 29.10.2016 the judgment-debtor was arrested and produced before the court and was directed to pay the decreta l amount and on his refusal, he was sent to civil prison. Subsequently , on 05.04.2017 the court while observing that the respondent No.6 had been sent to civil prison for a period of one year due to non-payment of decretal amount directed the petitioner to pay the same and when the said amount was not paid, issued warrants of his arrest. On 07.07.2017, the petitioner filed an application for recalling of the said order on the ground that the decretal amount be recovered from respondent No.7 who is father of respondent No.6 / judgment-debtor and grandfather of the minors and liable to make such payment. The petitioner also filed another application for summoning the father of respondent No.6 but both the said applications were dismissed by the trial court.
8. First this Court will deal with the objection raised by the petitioner that the grandfather is liable to maintain minors so his surety be absolved. Although the statutory law does not provide for mode of maintenance of the minors by their grandfather , the said aspect is provided by the "Muhammadan Law" which has been compiled by D.F. Mulla and for this purpose, reference may be made to para 370 of D.F. Mulla's Principles of Muhammadan Law (First Edition) compiled by Al-Qanoon Publishers which is reproduced below: "Maintenance of children and grandchildren.
(1) A father is bound to maintain his sons until they have attained the age of puberty . He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S. 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property .
(2) If the father is poor, and incapable of earning by his own labour , the mother , if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother is also poor, the obligation to maintain the children lies on the grandfather , provided he is in easy circumstances."
9. The perusal of the afore referred para makes it clear that in case the father of the minor is poor, it is the obligation of grandfather in easy circumstances to maintain his grandchildren and his grandchildren have a right to claim maintenance allowance from him which aspect of the matter is to be decided by the court on its own merits according to the material available before it. However , the said provision which provides an independent right to the minors to claim maintenance allowance from their grandfather does not absolve either judgment-debtor or the petitioner from making payment of the decretal amount to the minors in terms of the surety bond submitted by him before the court vide order dated 19.11.2015 by making himself liable to make the payment in case the father of the minors does not appear in the court or make the said payment. Section 128 of the Contract Act, 1872 provides that the liability of surety is co-extensive with that of principal debtor , unless it is otherwise provide by the contract. In the present case the petitioner has submitted surety for Rs.5,00,000/- to be paid in default of respondent No.6 and while accepting such liability , the petitione r had not made the same conditional upon or subject to any claim of the minors against the grandfather , therefore, said argument cannot be pressed into service to avoid such liability .
Besides, the surety has no right to claim that the decretal amount be recovere d from the judgment debtor or anybody else or the decree holder may be directed to assert his right against any other party or stranger to the proceedings before recovery of the same from the surety . Reliance is placed on Rafique Hazquel Masih v. Bank Alfalah Ltd. and others (2005 SCMR 72 ).
10. Another ground raised by the petitioner is that as he has produced respondent No.6 in court who has been sent to civil prison by executing court, therefore, he is not obliged to make payment of the decretal amount. Suffice it to say that arrest of the judgment debtor does not absolve the surety from making payment of the decretal amount and his liability is joint and several with the judgment debtor for making such payment. Reliance in this behalf is placed on Javaid Iqbal v. Judge Family Court and others (2018 MLD 1296 ) and Muhammad Amin v. Judge Family Court and 3 others (2015 YLR 316). Even otherwise, although provisions of Code of Civil Procedure, 1908 ("C.P .C.") have not been made applicable to the proceedings before Family Court by virtue of Section 17 of the Family Courts Act, 1964 ("Act") the said courts are empowered to adopt any procedure to regulate its own proceedings and for the said purpose, may adopt principles of C.P.C. as well. Reliance in this behalf is placed on the judgment reported as Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others (2016 SCMR 1821 ), Muhammad Tabish Naeem Khan v. Additional District Judge and others (2014 SC 1365) and Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361 ). A surety may be proceeded against for enforcement of his liability as provided under Section 145 of C.P .C. which is reproduced below: "S.145 Enforcement of liability of surety . ----Where any person has become liable as surety -- a) for the performance of any decree or any part thereof, or b) for the restitution of any property taken in execution of a decree, or c) for the payment of any money , or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47: Provided that such notice as the Court in each case thinks sufficient has been given to the surety ."
11 Perusal of the record shows that when the petitioner stood as surety on 19.11.2015, he had agreed to make payment of the decretal amount in case of failure of respondent No.6 to do so or on account of his non- appearance. Although the petitioner claims that the judgment-debtor was got arrested by him and on that account he claims that respondent No.6 be directed to substitute his surety , the said claim is without any substance for the reasons that for substituting the petitioner's surety there must be some person available in the court who agrees to stand surety for payment of the decretal amount in his place and that too with the leave of the court. In the present case no other person has agreed to stand surety for payment of decretal amount in place of the petitioner .
Moreover , the petitioner claims that the respondent No.6 be directed to substitute some other person in his place, however , the said request could have been made by the judgment debtor himself with permission of the court by producing another person who had agreed to stand as surety to the satisfaction of the court or in case the court required him to do so. After default had occurred there was no reason either to allow substitution of surety bond submitted by the petitioner or to absolve him from his liability to pay the agreed amount which had become due against the petitioner in view of principles laid down in Section 128 of the Contract Act, 1872 and Section 145, C.P.C.
12. At the most, the petitioner was entitl ed to receive notice from the court which in the opinion of the court is sufficient for proceeding against the surety in terms of Section 145, C.P.C. The court provided sufficient opportunities to the petitioner before proceeding against him. Consequently , the petitioner cannot claim to be absolved from his liability in terms of the surety bond. The claim of the petitio ner that he stood as surety on humanitarian grounds, therefore, the proceedings against him be dropped is without any legal basis and is declined, besides it is suffice to say that his right to claim indemnity from responde nt No.6 is protected by Section 140 of the Contract Act, 1872.
13. For what has been discussed above, it is observed that the courts below were justified to dismiss both the applications filed by the petitioner and said decisions warrant no interference being in accordance with law and record of the case.
14. This petition being devoid of any force is dismissed .