' This revision application under section 115, C. P. C. Is directed against the orders of the Senior Civil Judge, Mirpurkhas dated 13-10-1980, and 7-4-1981.
2. The facts giving rise to this revision application briefly stated, are as follows :-
3. Respondent No, 1 is the wife and respondents Nos. 2 to 7 are the sons and the daughters of Ali Muhammad, respondent No,
8. Respondents Nos. 1 to 7 filed a Family Suit, being Suit No, 80 of 1978, against respondent No, 8 for recovery of Rs, 19,200 as arrears of maintenance for the last 2 years, and future maintenance at the rate of Rs, 800 per month: This suit was decreed ex parte on 31-8- 1978.
4. In execution of the decree certain goods of respondent No, 1 were attached. It appears that respondent No, 8 applied for payment of the decretal amount by instalments and offered security of the house of the applicant.
5. The learned Senior Civil Judge and Family Court Judge, Mirpurkhas, by the order dated 31-5-1980, ordered payment of the decretal amount by instalments of Rs, 500 each and accepted the security of the house of the applicant.
' The relevant part of the order of the learned Senior Civil Judge and Fa mily Court Judge, Mirpurkhas reads as follows : "Mr. Sulleman has produced the judgment-debtor as well as one Ghulam Mustafa who undertakes to stand as security for payment of the decretal amount. The surety Ghulam Mustufa is the owner of a house, the particulars of which are mentioned in the original sale-deed executed on 25-1-1974.
The market value of this house would be about Rs, 1,25,000. Ghulam Mustufa is accepted as surety on behalf of Judgment-debtor Ali Muhammad but side by side judgment-debtor should also execute a bond undertaking to pay the amount by way of monthly instalment of Rs, 500 each."
6. Thereafter, on 24-9.1980, the applicant filed an application seeking permission for withdrawal as surety and praying for return of the property papers.
7. The learned Senior Civil Judge and Family Court Judge dismissed the application holding as follows : "He had stood surety to secure the payment of decretal amount. His request being absolutely illegal cannot be granted. He is directed to pay decretal amount within 15 days and in case of default, the property of the surety be attached and be put to auction, according to law in order to realise the amount of decree."
8. It further appears that on 16-7-1980, the Advocate for the decree-holders filed an application seeking clarification of the order dated 31-5-1980, whether the instalments of Rs, 500 per month were in addition to the amount of maintenance of Rs, 800 per month allowed or only Rs, 500 per month were to be paid in all. The decree-holders also filed an application for attachment of the house of the surety on the ground that the judgment-debtor had failed to pay first instalment which was to be paid on 1st July, 1980.
9. The learned Judge, therefore, by the order dated 13-10-1980 ordered commencement of the auction proceedings of the property. Therefore, the applicant on 20-1-1981, filed an application under sections 114, 115 and 151, C. P. C. Read with Order XLVII, C. P. C. For review of the order passed on 13-10-1980, which was dismissed by the learned Judge on 7-4-1981, holding that firstly the review application was not maintainable, secondly, there were no grounds for reviewing the order, and thirdly, the application was barred by time.
10. Therefore, the applicant has filed the present revision application against the orders dated 13- 10-1980 and 7-4-1981.
11. I have heard Mr. Muhammad Sharif Advocate for the applicant and Mr. Anwar Jamal Advocate for the respondents.
12. Mr. Muhammad Sharif, Advocate has raised the following grounds :-
(1) That the security furnished by the applicant was in the nature of continuing guarantee and, therefore, the applicant could file an application for withdrawal of the security and his application was therefore wrongly rejected.
(2) By the order of payment of the decretal amount by instalments the applicant was discharged as surety?
(3) That respondents Nos. 1 to 7 did not accept the order dated 31-5-1980.
(4) That only one instalment had become due and, therefore, the house could not be sold for payment of the entire decretal amount.
13. On the other hand Mr. Anwar Jamal Advocate has raised preliminary objection as to the maintainability of this revision application itself.
' I would, therefore, first decide the question of maintainability of the revision application.
14. Taking up the preliminary objection as to maintainability of the revision it may be stated that Mr. Anwar Jamal submitted that no revision application lay against the order passed by a Family Court Judge.
15. The objection is valid for the order passed by the Family Court (presided over by a Civil Judge) or by Appellate Court (presided over by a District Judge) cannot be revised under section 115, C. P.
C. As under the provisions of section 17 of the West Pakistan Family Courts Act, 1964 the application of C. P. C. Except sections 10 and 11 thereof has been excluded A in its application to the proceedings before Family Court, and the said Court is not subordinate to the High Court within the contemplation of the provisions of section 3, C. P. C. If any precedent is needed reference may be had to the decision of Lahore High Court in Wajahat All Hasnie v. Mst. Ghazala. In this case Mr.1 Justice Nasim Hasan Shah referred to the observations of Qadeeruddin Ahmed, J.-(as he then was in Begum Zainab Tiwana v. Aziz Ahmed Waraich, which are as follows :- "In order to provide a cheap and speedy remedy to married women, orphans, sisters and daughters, who are generally handicapped for lack of funds, it appears necessary to set up Special Family Laws Courts, which will not be hide-bound by the Technicalities of the C. P. C. Or the Evidence Act. They should instead follow a very much simplified procedure. We agree with the proposal made by the Commission on marriage and Family Laws to the effect that the Legislature should lay down a few fundamental principles for the guidance of such Courts and the remaining procedure should be regulated by simple rules to be framed by the High Courts. The object aimed at should be that substantial justice should be ensured to the parties who v, ill have recourse to these Courts and, therefore, there should be a certain amount of flexibility in the procedural rules that shall govern these Courts."
' And then observed: "This intention would be frustrated if every case was liable to be carried to the High Court under section 115, C. P. C. The object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts Act. But merely because of this subordination to the High Court it does not automatically follow that the orders passed by such a Court become revisable by the High Court. The revisional power is contained in section 115 of the C. P. C. However, by virtue of section 17 of the Act, the application of the provisions of the Code of Civil Procedure are excluded, except for certain limited purposes which are specified in the Act.
Moreover, the Civil Procedure Code does not, as provided in section 4 override any special or local law. The provisions of section 17 of the Family Courts Act must, therefore, be given their full effect with the result that even if the Family Court is regarded as a Court subordinate to the High Court, the effect of section 17 of the Act is to exclude the orders of the Family Court from the operation of section 115, C. P. C.and the said provision of law is not available for obtaining revision of order passed by the Family Courts."
' The learned Judge among others placed reliance on the Full Bench judgment of Lahore High Court in the Corporation of the City of Lahore v. Mst. Fahmida Begwn.
' Dealing with the provisions of section 3 of the Code of Civil Procedure it was observed by the learned Judge at pages 644 and 645 of the report as follows :- "I cannot accept the broad and unqualified proposition that since it is held that an officer, authority, or functionary is exercising the functions of a Court in a relation to rights that may be called "civil" that officer, authority or functionary must be held to be subordinate to the High Court. The result of any such finding would be that all Courts which adjudicate upon the civil rights of subjects whether in cases between the subjects themselves or between the State and the subject will be subordinate to the High Court and this will bring within the sphere of subordination not only the revenue Courts which admittedly decide civil dispute between the parties but also the Income-tax authorities which determine the subject's liability to the State". I respectfully agree and may add that the words "subordinate Court" in section 115 of the Code of Civil Procedure ought to be understood in the sense given to them in section 3, otherwise the words "for the purposes of this Code" would be rendered useless. Since section 3 is enacted for the purposes of the Code and deals with all the civil Courts and their subordination to one another, the inference appears to be irresistible that no Court other than that mentioned in it can be said to be subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure.2 3 ' Mr. Mumtaz Hussain, Advocate, appearing on behalf of the Advocate-General in response to a notice issued to the latter drew my attention to three judgments from the criminal jurisdiction in support of the view that a Court or Tribunal of an "inferior" rank cannot be deemed to be subject to the revisional jurisdiction of the High Court only because of its being inferior in rank to the High Court. In Hari Meah v. State (PLD 1959 SC (Pak.) 307) a Special Magistrate appointed under the East Pakistan Food (Special Courts) Act, 1956, not being a First Class Magistrate appointed under the Criminal Procedure Code was held not to be a Court from whose judgment an appeal would lie under the provisions of section 408 of the Cr. P. C. In Sakhi Muhammad v. Wajid Ali etc. (PLD 1964 Lah. 426) it was held that a Court exercising criminal jurisdiction under special statute with regard to offences created by such statutes cannot be regarded as inferior criminal Court simply because, under special Statute such a Court is "deemed to be a Court of Magistrate of the 1st Class under the Code of Criminal Procedure, 1898". The principle mentioned above was again reiterated in a recent judgment reported as Qazi Saleem v. Manager, National Products Co. (PLD 1970 Kar.
33) where orders passed by the Industrial Court were not held to be revisable under sections 435 and 439 of the Criminal Procedure Code by the High Court. The learned Judge in the course of his judgment observed "the crux of the whole question i,e, whether the case is tried by a special kind of tribunal specially brought into existence by a statute or it is tried by a Court of Magistrate constituted under the Criminal Procedure Code. The Industrial Court is not a Court constituted under the Criminal Procedure Code, but it is constituted under the Industrial Disputes Ordinance and despite the fact that the powers of a First Class Magistrate for trial of the offence are conferred upon it, no revision is maintainable". Although these authorities do not deal with the question under consideration and are, not, therefore, strictly relevant, they do throw some light on the general proposition that a Court which is inferior in rank to the High Court is treated as subordinate to it for purposes of exercise of revisional jurisdiction only if it has been declared subordinate to it by a statutory provision."
16. The above view has been followed in a number of cases.
' I may here refer to some of the reported cases. The view taken by Nasim Hasan Shah, J. Has very recently been followed by Muhammad Ilays, J. In Azhar Hussain v. Chartered Bank, Faisalabad and 17 others.
' In Mst. Tehseen Akhtar v. Mahmoodul Hassan, it was followed by A. R. Sheikh, J.
' Reference may also be had to Farida Parveen v. Qadeeruddin Ahmed. The argument advanced in this case was that a District Court not having been defined in the West Pakistan Family Courts Act would be the same Court which is defined as such under the Civil Procedure Code and that, therefore, a revision would lie under section 115 of the Civil Procedure Code. However, Muhammad Haleem, J. (as he then was and now Acting Chief Justice of Pakistan) observed that "even though it is a Court subordinate to the High Court its decision on appeal under section 14 of the said Act cannot be said to be a case decided within the meaning of section 115, C. P. C. As the application of the Civil Procedure Code has been excluded by section 17 of the said Act. It is, therefore, plain that there is no scope for a revision to the High Court against the appellate judgment of the District Court under section 14 of the said Act".'
' I may also refer to a Full Bench decision of the High Court of Sind & Baluchistan (Karachi Bench) in Mst. Zaibunnisa v. Muhammad Muzzamil, wherein Dorab Patel, J. Who while delivering the opinion of the Court, at page 420 of the report observed as follows :- "Secondly, a revision is a remedy under the Civil Procedure Code. But as section 17 of the said Act has prescribed that the provisions of the Civil Procedure Code, except sections 10 and 11 shall not apply to Family Courts, the applicant cannot invoke section 115 of the Civil Procedure Code, and that was also the view of my learned brother Muhammad Haleem, J. In Mst. Farida Parveen v.
Qadeeruddin Siddiqui (PLD 1971 Kar. 118)."4 5 6 7
17. The view taken in Wajahat Ali Hasnie, Tahseen Akhtar and Farida Parveen's cases was followed by Tufail Ali A. Rahman, C. J., in Syed Shamim Ahmad v. Mst. Riaz Fatima, in these words : "1 have, therefore, come to the conclusion with respect, that all the three cases, which have taken the view that no revision of the present kind lies to this Court, were correctly decided and I see no reasons whatever to disagree with them."
18. The view taken in Wajahat All Hasnie's case has also been approved by the Supreme Court in a very recent judgment, delivered on 2-6-1981, in the case of Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others, and it was observed in relation to that case : "We think that the principle enunciated in the above case is also applicable to the present situation."
' It may be mentioned that in this case a revision application under section 115, C. P. C. Was filed against the inter locatory order passed by the special Judge under the provision of the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) and the question for consideration was whether the same was revisable under section 115 of the Ordinance or not.
' No case, wherein contrary view was taken was brought to my notice nor have I noticed any. Thus, the point is well-settled.
19. However, it was submitted by Mr. Muhammad Sharif that the order impugned in this revision application was passed in execution proceeding by a Civil Judge and not by a Family Court Judge.
But the submission overlooks the provisions of section 13 of the West Pakistan Family Courts Act, as thereunder a decree is to be executed by the Court passing it or by such Others 'civil Court as the District Judge may by special or general order directs In this case the decree is being executed by the Court which passed it and which is no doubt, a Family Court.
20. I, therefore, hold that this revision application is not maintainable.
21. In view of the above finding it is not necessary to deal with and decide the points raised by Mr. Muhammad Sharif. However, I shall deal with them as well, as in my view even on merits this revision application has no substance.
22. Now, taking up the case on merits as regards the first ground that security furnished by the applicant was in the nature of a continuing guarantee and the applicant could revoke the same, I may at the very outset state that although the provisions laid down in sections 129 and 130 of the Contract Act are not attracted to the surety bond or the security furnished in favour of the Court in the same way as they apply to a guarantee given in favour of a private party because the creditor in the case of surety bond executed in pursuance of section 55, C. P. C. Is the Court and the obligations of the surety cannot come to an end merely by giving notice of revocation as contemplated in section 130 of the Contract Act, but the principle in appropriate case can be applied as laid down in Amanullah Khan v. Syed Masood All Naqvi and others.
23. The question whether or not a particular transaction is a continuing guarantee depends on the terms of the instrument. A perusal of the ordre for compliance of which security was furnished shows that security was furnished for payment of the amount of the decree in instalment of Rs, 500 each, the guarantee was not for payment of Rs, 500 per month in future only. Now, in accordance with the provisions of section 130 of the Contra Act there is no doubt that a continuing guarantee as to obligation arising in future can be revoked but a guarantee which is for obligation already undertaken or incurred as to the same it cannot be' revoked. The point is well-illustrated by the illustration "a" under section 430 of the Contract Act which is as follows : "(a).-A, in consideration of B's discounting, at A's request, bills of exchange for C, guarantees to B, for twelve months, the due payment of all such bills to the extent of 5,000 rupees. B discounts bills for C to the extent of 2,000 rupees. Afterwards, at the end of three months A revokes the guarantee.
This revocation discharges A from all liability to B for any subsequent discount. But A is liable to B for the 2,000 rupees, on default of C."8 9 10
24. The principle is that if the consideration for a contract of guarantee has flowed once for all and is confined to a single transaction, it cannot be extended to a series of transaction. Where the guarantee has been given for the performance of a definite engagement, which has already come into existance and is not contingent and the consideration for which is not variable as the result of future dealings between the parties the contract is not one of continuing guarantee.
25. I am also fortified in my view by the decision in Bhagvandas Bangildas Vani v. Secretary of State for India (2). In this case a licence to sell liquor for a period of three years was granted to one 'F'.
Under the terms the licence money was to be paid in instalments. The applicant stood surety for 'F'.
It was held that the guarantee was not a continuing one and the plaintiff was not entitled to put an end to his liability by arbitrarily revoking his guarantee.
26. My view also finds support from a Division Bench decision of this Court in the Province of West Pakistan v. Shamsuddin and another (3). In this case the lease of land for 3 years in consideration of lease money payable in three equal instalments was granted. The surety for lessee in unambiguous terms bound himself for entire lease amount in surety bond, as in the present case.
On these facts it was held that mere reference to instalments in lease deed could not render transaction to be series of transactions and it was further held that the guarantee related to a single transaction and was not a continuing guarantee.
27. The learned counsel for the applicant however, referred to Durga Priya Chowdhury v. Durga Pada Roay and others (4). In this case 'A' was appointed for the purpose of collecting rents of plaintiff Zamindari and `B' held himself responsible for the due collection and payment by `A' of those rents to the extent of a certain sum by a security bond executed by him. On these facts it was held it was a continuing guarantee. But in the above cited case the rent was to be collected in future and not that the rent was already collected. But in the present case decree was already passed against the judgment-debtor the payment thereof was secured by the applicant in certain manner i,e, by instalment of Rs, 500 per month. Therefore, this case is distinguishable.
28. Mr. Muhammad Sharif also relied on the case of Amanullah Khan v. Syed Masood Ali Naqvi and others (5). But this case is of no help to him as in this case the surety had stood guarantee to produce the judgment-debtor in Court in future which was a continuing obligation and which could be terminated as to future obligation by placing parties in the same position in which they were and accordingly it was held that the guarantee was a continuing guarantee.
' Mr. Muhammad Sharif also referred to Sherumal Chainrai v. H. Greenfield (I). In this case a suit was filed by the plaintiff, who was the sole trustee of certain premises leased to the United Club and in the use and occupation of the Club from May, 1922 to March, 1924, for arrears of rent of the premises from July, 1923 to March, 1924. Defendants 1 and 2 were respectively member and Honorary Secretary of the Club and the plaintiff sought to attach liability to them for arrears of rent as defendant 1 negotiated the lease of the premises and defendant 2 was the Honorary Secretary of the Club. The Additional Judicial Commissioner held that defendant 2 was not liable for the rent and dismissed the suit as against him. As regards defendant 1, it was held that he was liable for rent as a guarantor, but that he had got rid of his liability by a disclaimer contained in a letter sent to the plaintiff in May, 1923. The suit was, therefore, dismissed as against defendant 1 also.
' In appeal against the decree it was argued that the defendant by negotiating the lease guaranteed the payment of rent until the lease should terminate, but it would appear that the guarantee in that case was a continuing guarantee within the meaning of section 129, Contract Act.
' On these facts and argument it was held by the Division Bench of the Court of Judicial Commissioner Sind as follows : "It cannot be said that in this case the transaction which consisted of the payments of rent for a series of months was one transaction. The guarantee which related to a number of payments of rent extended to a series of transactions and was therefore a continuing guarantee. As the guarantee was a continuing one, it was open to defendant to revoke his guarantee by a notice to plaintiff and this he did by his letter of 16th May, 1923. As by the letter defendant has divested himself of his liability, he is not responsible for the payment of rent claimed in this suit which accrued after he had revoked the contract of guarantee."
' It will be seen that in this case on facts it was held that the guarantee was a continuing guarantee and, therefore, the case is distinguishable on facts.
29. Accordingly, I hold that the security furnished by the applicant was not in the nature of continuing guarantee and therefore, it could not be revoked.
30. Taking up the second ground I may state that it has also n substance for security of the house offered by the applicant was accepted b the same order by which instalments were granted and it was thereafter that the applicant had executed the surety bond. Therefore, even on th principle contained in section 133 of the Contract Act the applicant/surety cannot be said to have been discharged for no variation in the order subsequent to the furnishing of the security or execution of surety bond was made muchless to the disadvantage of the applicant.
31. As regards the third ground that respondents 1 to 7 did not accept the order dated 31-5-1980 it may be pointed out that the ground arises out of the application made by the Advocate for the decree-holder seeking clarification whether the order of payment of instalment of Rs, 500 per month related only to art ears or it was the total amount which was to be paid every month.
Obviously, it cannot be said that by making such an application the decree-holder did not accept the order whereby the judgment-debtor was allowed to pay the decretal amount in instalment and the applied ; ant's security of the house was accepted. Moreover, the order was not changed or varied in any manner. This ground, therefore, also has no substance.
33. Taking up the last ground it may be stated that no doubt the security was furnished for the entire decretal amount of Rs, 37,600 payable in instalments and at the relevant time default in payment of only one instalment was made but it would not make any difference whether the house is sold in default of payment of one instalment only or the entire decretal amount for the result would be the same unless the instalment in arrears was paid. This ground, therefore, also fails.
34. In the result the application is dismissed both on the grounds of its non-maintainability and merits. The applicant shall bear the costs of the respondents. PLD 1970 Lah, 641 PLD 1967 Lah. 977 PLD 1952 Lah. 987 1981 CLC 516 PLD 1971 Lab. 875 PLD 1971 Kar. 118 PLD 1972 Kar. 41Q PLD 1975 Kar. 448 PLD 1981 SC 359 PLD 1958 Kar. 393 AIR 1930 All 730 AIR 1926 Bom. 465 PLD 1966 Kar. 297 AIR 1928 Cal. 204 PLD 1958 Kar. 393 AIR 1930 Sind 3161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16