SYED ARSHAD ALI, J. One of the greatest sins in Islam is to usurp the property of an orphan. Indeed, it is such a grievous sin that the punishment of which is fixed by Almighty Allah to be the fire of hell. The Holy Qur'an says "As for" those who swallow the property of the orphans unjustly, surely they only swallow fire into their bellies and they shall enter burning fire." (Surah an- Nisa 4:10).
2. In the said Surah it is further the command of Almighty Allah, "and give to the orphans their property, and do not substitute worthless (things) for (their) good (ones) and do not devour their property (as an addition) to your own property; this is surely a great sin." (Surah an-Nisa 4:2).
3. In one of his narrations, the Holy Prophet (SAW) said (when an orphan cries the Heaven shudders then Almighty Allah Says, 'O Angels, Is this the same orphan whose father has been buried in the earth?' The Angels reply '(O Allah) You are all-Knowing' then Allah would Say, 'O My Angel be a witness. Whoever consoles this orphan and makes him happy, I will make him happy on the day of Qiyama)'. Islam emphatically and with clear words emphasizes not only on the appointment of guardians of the orphans but casts a sacred duty upon such a guardian to deal with the person as well as the property of the minor with utmost care. A minor boy or a girl cannot spend from their wealth and only their guardians have the right to spent from their wealth for their upkeep. Indeed, the guardian of an orphan shoulders a very serious responsibility, he should judiciously spend for all the needs of the orphan, neither being miserly nor extravagant. Sponsoring orphans is a cause particularly dear to the Holy Prophet Muhammad's (SAW). The Holy Prophet himself was an orphan and it is narrated in Sahih Bukhari that the Holy Prophet (SAW) has said, "the one who cares for an orphan and I will be together in Paradise like this, (and He (SAW) held his two fingers together to illustrate). Thus, the message of Islam is that whoever (guardian) looks after the person as well as the property of an orphan with piety and due care earns a high reward whereas for a careless and usurper guardian, the punishment is fire.
4. Moving on to the facts of the case, it is evident from the record that one Abdul Rehman who was an industrious person died in a road accident on 25.10.2009 and was survived by a widow Mst. Ayesha Rehman and three minor children namely Obaid- ur-Rehman, Hussna Rehman and Urooj Rehman as well as his parents. The petitioner Abdul Rauf the brother of the deceased; with the consensus of the parties was appointed as a guardian for the person's as well as property of the minors by the Guardian Judge vide order dated 27.10.2010.
5. Pursuant to a conditional permission from the Guardian Judge, he was allowed to sell the property of the minors with direction to maintain proper account of expenses and deposit the same in the Court.
6. It was on 03.05.2013 that the minors filed an application before the Guardian Judge/Senior Civil Judge, Peshawar seeking revocation of the appointment of the petitioner as a guardian, complaining usurpation of the sale proceeds of the property of the minors. The said application was allowed by the trial Court on 23.01.2016 with direction to the present petitioner to deposit the share of the minors in the Court amounting to Rs.2,187,500/- which was the share of the minors in the sale proceeds of a house which was sold by the present petitioner against the sale consideration of the 2,500,000/-.
7. The petitioner had challenged the said judgment and order through a civil appeal before the then learned District Judge, Peshawar through civil appeal No.01/GA of 2016. The learned Appeal Court dismissed the appeal of the present petitioner on 28.04.2017. The present petitioner being not contended with the concurrent findings of both the Courts, had challenged the same before this Court through W.P No.3209-P/2017. The said petition came up for hearing before this Court on 19.02.2018, this Court through an elaborate judgment had also dismissed the said petition.
8. It would be pertinent to note that the point of contest of the present petitioner in those proceedings was that the plot in question was sold by the petitioner with mutual consent and the sale proceed was utilized for the construction in another residential house wherein petitioner along with respondents were residing.
9. When ultimately the minors through their mother had approached the Executing Court for recovery of the said amount against the present petitioner, he filed an objection petition before the Executing Court re-agitating the earlier objection which he had raised while contesting the application of the respondents/minors for revocation of the guardian certificate. The said objection has been concurrently dismissed by both the Courts below hence the present petition.
10. It is the main contention of the learned counsel for the petitioner that the share of the minors in the revocation certificate was not properly determined as the parents of the deceased were alive and thus the entire sale proceeds should not have been ordered to be deposited in the Court being the share of minors and the petitioner being the legal heirs of the parents of the deceased is also entitled in his legacy and under section 47 of Civil Procedure Code ( 1908) (" the Code") the executing court has the power to determine the said issue.
11. These arguments have no legal force for the obvious reason that the said issue has already been determined in the earlier round of litigation up to this Court. Hence, re-agitating this matter by the petitioner through an objection petition is obviously mala-fide. Even otherwise, the parents of the deceased more particularly the mother was alive till 2016 and during her life time they never raised any objection claiming their share in the suit property. Indeed, it is settled law that the Executing Court has no mandate to go beyond the decree and once the rights of the parties are settled by the Court of first instance and later was affirmed by the appellate or further fora, then objection petition during the execution proceedings on the same ground is not only misconceived but should be summarily dismissed, enabling the decree holder to reap the fruits of their decree. "Topanmal Chhotamal Vs. M/s Kundomal Gangaram & others reported as (AIR 1960 SC 388) and Fazal Ilahi & another Vs. (Firm)
R.B Sabel & Co. and another reported as (AIR 1935 Lahore 549)." Indeed, the executing court has no mandate to re- adjudicate upon the legality and proprietary of a decree for which the Objector has other avenues. "Saifee Development Corporation Ltd., Karachi Vs. M.A. Karim reported as (PLD 1974 Karachi 426) and S.A. Latif Vs. Nadir Khan reported as (PLD 1968 Lahore 144)". In the present case the Objector who is a judgment debtor has already exhausted the said remedies.
12. In the instant case the respondents are/were minors orphans and the present petitioner being their uncle has legal and religious duty to look after the orphans but instead he is adamant to swallow the orphans property which is against all norms of ethos.Indeed it is such a case where exemplary cost should be imposed on the petitioner, however, keeping in view his financial position this petition is dismissed with cost of Rs.50,000/- payable by the petitioner to the minors/respondents. The said amount shall be recovered by the executing court in addition to the amount which is payable by the present petitioner on account of the original decree/order.
13. Similarly, the connected Civil Revision No.496-P/2021 having the same facts is also dismissed with cost throughout. Copy of this judgment be transmitted to the learned Executing Court for compliance and information.