MUHAMMAD SHAN GUL, J:- Through this constitutional petition the petitioner has laid a challenge to an order dated 20.09.2021 passed by a Civil Judge 1 Class Vehari who, while adjudicating an execution petition filed to seek implementation of judgment and decree dated 18.06.2021 passed by a Judge Family Court and slightly modified yet upheld by judgment and decree dated 13.09.2019 passed by an Additional District Judge, has while deciding such an objection petition framed issues.
2. Learned counsel for the petitioner submits that the case has a chequered history and in order to prolong the agony of the petitioner , respondent No.2 is trying to abuse process of the court. Learned counsel for the petitioner adds that while executing a judgment and decree passed in terms of the family law jurisdiction, an executing court cannot take benefit of the provisions of the Code of Civil Procedure and insofar as the executing court has framed issues emanating out of an objection petition filed by respondent No.2, it has exceeded its jurisdiction.
3. The above has come to pass because respondent No.2 filed an objection petition claiming that dowry articles for the recovery of which the execution petition was filed had already been given to the petitioner and an Iqrarnama to that effect had been signed by the petitioner . The learned executing court in order to resolve the controversy framed issues and asked the parties to produce evidence.
4. This is what has caused offence to the petitioner who claims that since the Code of Civil Procedure is anathema in matters emanating out of the Family Courts Act 1964, the executing court could not have sought guidance from Order XXI CPC, framed issues and ordered for production of evidence. He submits that if at all any dowry articles had to be returned then the same ought to have been handed over to the petition er in front of the executing court and not behind its back. Further states that the exercise being undertaken by the executing court tantamounts to questioning and going behind the decree which is beyond the jurisdiction of an executing court.st
5. Learned counsel for the petitioner has been confronted with the fact that the order dated 20.09.2021 (impugned order) has been passed so as to address and resolve the issue existing between the parties and that there is no other way for the executing court to determine questions pertaining to the execution of judgment and decree in question; that in the absence of any procedure envisaged by the Family Court Act itself, wisdom and nuances of procedure may be borrowed by the Family Court from the Civil Procedure Code and that section 47 CPC invests the executing court with the jurisdiction and power to determine all questions pertaining to a decree; that the application on the basis of which the impugned order has been passed does not demand an exercise that takes the executing court behind the decree which is forbidden territory but that the application is rather aimed at assuring the executing court that dowry articles have already been returned to the petitioner , albeit, out of court.
6. Learned counsel for the petitioner has also been informed about precedent cases on the subject including but not limited to "Muhammad Tabish Naeem Khan v Additional District Judge, Lahore and others" (2014 SCMR 1365 ), "Muhammad Saad Ali and 2 others v. Mst. Maryam Khan and 2 others" (2014 CLC 715), "Abdul Rehman v. Mst. Ruqia Begum and others" (2018 CLC Note 35) and "Muhammad Ramzan Vs. Ali Hamza and others" (PLD 2016 Lahore 622) according to which the Family Court is a quasi-judicial forum which can plan and follow its own procedure and which forum is authorized to adopt any procedure unless the same as has been specifically prohibited. Learned counsel for the petitioner has also been confronted with the law laid down in "Asghar Ali Vs Additional Sessions Judge Kasur and others" (2015 MLD 353) and "Muhammad Tariq v.
Fazeelat flyas alias Fareelat Bibi" (PLD 1997 Lahore 728) in terms of which objections relating to execution of a decree can be decided after framing of issues and recording of evidence.
7. Learned counsel for the petitioner , however , contends that in the presence of Section 13(3) in the Family Courts Act, the executing court could not have resorted to the procedure contained in Order XXI Code of Civil Procedure and that the approach adopted by the executing court is in defiance of the law laid down in (1996 MLD 588) "Hafiz Muhammad Ashiq Hussain v. Mst. Abida Begum " and (PLD 2012 Lahore 392) "Muhammad Aslam v. Ayyan Ghazanf far and 2 others ". Learned counsel for the respondent has, however , supported the order of the executing court.
8. Heard.
9. In the matter before this Court the petitioner has filed an execution petition before a Family Court Vehari, seeking execution of judgment and decree dated 13.11.2019 passed by a learned Addl. District Judge through which dowry articles or their alternative price of Rs.2,00,000/- has been awarded. During the pendency of this execution petition respondent No.2, Muhammad Kashif, the estranged husband of the petitioner , filed an objection petition-cum- application praying for the execution proceedings to be dropped since he had already returned dowry articles to the petitioner and, therefore, nothing remained to be paid. The petitioner filed reply to the said application and vide order dated 20.9.2021 (impugned order) the Executing Court ruled that the application of the judgment-debtor could not bedecided in a summary manner without recording of evidence of both parties and proceeded to frame two issues and asked the parties to produce evidence. The issues framed are as under:- "i). Whether dowry articles were handed over to decree holder? OPP/Parties ii) Whether stamp paper was get it signed on gun point which is forged and fictitiou s document, same is liable to be cancelled? OPR ii). Relief."
10. It may be mentioned here that the Family Court is a quasi-judicial forum which can organize its own procedure and which forum has been implicitly authorized to adopt and pursue any procedure which is not specifically barred or prohibited. Even if the Code of Civil Procedure, 1908, has not been made directly applicable to the proceedings in a suit filed under the auspices of the Family Courts Act, 1964, it does not at the same time mean that the Code of Civil Procedure is odious insofar as proceedings before the Family Court are concerned and more so in the case of execution proceedings because in terms of the law laid down by this Court in "Abdul Majeed v. Additional District Judge, Shujabad and 2 others" (2019 YLR 2924 ), it has been lucidly observed that, "upon deeper examination of Section 17 of the West Pakistan Family Courts Act, 1964, it is evident that exclusion of Code of Civil Procedure, 1908 envisaged therein, is not applicable to execution proceedings which can be regulated and proceeded with in terms of Order XXI of Code of Civil Procedure, 1908. In addition to the above, it is right that a Family Court has the power to adopt its own course provided such course is not opposed to the princi ple of natural justice, especially audi alteram partem."
11. As long as there is no conflict between the provisions of Code of Civil Proced ure, 1908, on the one hand and those of the Family Courts Act, 1964 on the other , such provisions can be employe d and adopted. The logic behind this rule is rooted in the fact that after all the Family Court has to adopt and pursue some principles and procedure and, therefore, what better than the tried and tested procedure contained in a law that has remained successfully in force since the past 113 years. A Family Court can, therefore, proceed on the premise that every procedure is permissible unless a clear prohibition is forthcoming. As long as procedure so adopted does not compromise the aim and sweep of the Family Courts Act, 1964, which is to provide expeditious relief in matrimonial and family matters there is no reason in law to deny a Family Court to adopt such procedure. As has been noted by the Hon'ble Supreme Court of Pakistan in "Muhammad Arshad Anjum v. Mst. Khurshid Begum and others" (2021 SCMR 1145), the exclusion of normal rules of procedure is essentially designed to circumvent delays in disposal of sustenance claims by the weak and the vulnerable and, therefore, as long as a procedure is essentially required to be adopted for an effective decision in a matter and does not fall foul of the expressed aim and object of the Family Courts Act, 1964, a Family Court is well within its jurisdiction to borrow procedure from available avenues stipulated by statute and there is no clog of the authority of a Family Court to adopt and follow such procedure. The Hon'ble Supreme Court of Pakistan in "Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others" (2014 SCMR 1365 ) has held that the family court being a quasi-judicial forum can draw and follow its own procedure provided such procedure is not against principles of fair hearing and fair trial.
12. It may be mentioned here that since the Family Court is a quasi-judicial forum it partakes most elements and characteristics generally associated with a judicial forum. Naturally , it has to have a procedure it will follow in the event of deciding a particular lis.
13. The aspect of hearing of parties, the element of passing decisions which are reasoned and speaking, recording and appraisal of evidence etc. make it incumbent on a Family Court to adopt and pursue some procedure in the absence of any specific procedure having been made applicable. In "Haji Muhammad Nawaz v. Samina Kanwal and others" (2017 SCMR 321), it has been eloquently held that, "In terms of law, the proceedings of the learned family court are governed by general principles of equity , justice and fair play ."
14. In "Muhammad Majid Iqbal through Special Attorney v.Judge Family Court, Dunya Pur and 2 others"
(2021 CLC 644), it has been held that it is settled law that a Family Court has discretion and comp etence to adopt any procedure to decide a particular case provided such procedure is not expressly barred by some law or such procedure is not derogatory to the principle of fair hearing or fair trial. This means that a Family Court can follow principles and procedures laid down in the Code of Civil Procedure if such principles are not contrary to the Family Courts Act, 1964 and the employing of such procedures is in line with the aims and objects of the Family Court Act 1964. In "Abdul Rehman v. Mst. Ruqia Begum and others" (2018 CLC Note 35) it has been observed that, "although a mode of execution has been specifically provided in Section 13(3) of the Family Courts Act, 1964, at the same time, it is trite law that a Family Court might follow procedure as contained in the Code of Civil Procedure for the purpose of execution."
15. In a celebrated judgment reported as "Muhammad Ramzan v. Ali Hamza and others" (PLD 2016 Lahore 622) a single Bench has immaculately captured the correct position of law and it has been held at paragraph No.9 as follows:- "9. The provisions of The Civil Procedure Code (V of 1908) except Sections 10 and 11 though have been ousted from the purview of Family Courts Act, 1964 by way of Section 17 of the said Act, however , Family Court cannot merely sit as a spectator for the purpose of executing its own decree. The Family Court may follow the procedure as contained in The Code of Civil Procedure (V of 1908) for the execution of the decree. Order XXI, Rule 30 of The Code of Civil Procedure (V of 1908) provides mechanism for execution of a decre e for specific moveable property and the Family Court can adopt the procedure provided in The Civil Procedure Code (V of 1908) for execution of its decree irrespective of the provision contained in Section 13 of The Family Courts Act, 1964. Reference can be made to " Muhammad Farid Khan v . The Civil Judge-I, Abbottabad and 3 others" ( 1989 CLC 1630 )."
16. In the matter before this Court the Family Court has been quite honest in admitting that an effective adjudication of the respective claims of the petitioner and respondent No.2 as contained in their objection application and reply could not be made summarily without recording of evidence and, therefore, rightly framed issues so as to be decided after record ing of evidence. There is nothing unusual or unreasonable about this approach of the Family Court and since there is no embargo on a Family Court to employ provisions contained in Order XXI of Code of Civil Procedure, 1908, and since the code itself acknowledges an executing court to frame issues, record evidence and adjudicate objection petitions (see ["Tahir Din and others v. Zafar Ullah Khan and others" (2008 SCMR 1346 )], there is nothing unusual, irregular , improper or illegal about the approach adopted by the Family Court in the present matter .
17. Similarly , the cases reported as "Asghar Ali v.Additional Sessions Judge, Kasur and others" (2015 MLD 353),"Province of Punjab and others v. Abdul Rashid" (2015 CLC987) and "Rai Muhammad Riaz v. Ejaz Ahmad and others" (2013 YLR 1890 ), empower an executing court to frame issues, to hear parties, to allow them to adduce evidence and to rule on the basis of such evidence and which approach has been acknowledged as correct. Therefore, since the Code of Civil Procedure,1908, can be employed in execution proceedings by a Family Court there is no merit in the contentions raised by counsel for the petitioner and the petition is, therefore, dismissed .