MIRZA VIQAS RAUF, J. By way of this single judgment we intend to decide the title application as well as following applications :- Sr.
No.Case Number Particulars 1Transfer Application No.10 of 2022Mst. Bahar Hamid versus Abdul Majid 2Transfer Application No.26 of 2022Mst. Zahida Parveen versus Ahsan Riaz etc. 3Transfer Application No.27 of 2022Muneeba Shaheen versus Ali Hassan 4Transfer Application No.29 of 2022Afshan Omer etc. versus Muhammad Farooq 5Transfer Application No.30 of 2022Mst. Misbah Abid etc. versus Ramzan Ali 6Transfer Application No.32 of 2022Mst. Nazia Mumtaz versus Muhammad Danish Munir 7Transfer Application No.33 of 2022Mst. Mobeen Akbar etc. versus Qaisar Mehmood etc. 8Transfer Application No.34 of 2022Sana Nazeer etc. versus Usama Bin Ahmed 9Transfer Application No.35 of 2022Syeda Saima Batool etc. versus Syed Jahanzaib Ali Shah 10Transfer Application No.43- C of 2022Mst. Fouzia Jabeen versus Muneeb Ahmed Khan 11Transfer Application No.46 of 2022Hafiza Shabnam Bashir versus Muhammad Anjum etc. 12Transfer Application No.47 of 2022Mst. Isra Jabeen etc. versus Muhammad Naveed Younas Awan 13Transfer Application No.51 of 2022Mst. Syeda Nafisa Gul etc. versus Syed Haider Ali Shah etc. 14Transfer Application No.52 of 2022Mst. Shehzadi etc. versus Naveed Ahmed Shah etc. 15Transfer Application No.53 of 2022Mst. Nargis Shaheen versus Imran Akram 16Transfer Application No.54 of 2022Sara Gurchani etc. versus The Learned Family Judge/Executing Court, Rawalpindi etc. 17Transfer Application No.57 of 2022Mst. Farhat Shaheen etc. versus Zulfiqar Ali 18Transfer Application No.58 of 2022Mst. Saba Rafique versus Muzamil Hussain 19Transfer Application No.03- C of 2023Mst. Nadia Parveen etc. versus Muhammad Iftikhar 20Transfer Application No.08- C of 2023Wajeha Irum etc. versus Muhammad Umair Nazir as all these applications canvass common questions of facts and law.
2. The applicants herein are seeking transfer of execution petitions pending before different learned Family Courts in pursuance of decrees passed in the suits instituted under the Family Courts Act, 1964. The question for resolution before us is relatable to mode of transfer/entrustment of the execution petition in case where the judgment debtor does not reside or hold property in the territorial jurisdiction of the Family Court which passed the decree.
3. We have noticed that matter under consideration was previously resolved by a learned Single Bench of this Court in Mian MUHAMMAD ARSHAD versus SABA GUL and 5 others (2022 MLD 1280) with the following observations :- "9. Resultantly, instant petition is allowed and impugned order dated 08.04.2021 and judgment dated 16.04.2021 are declared to be illegal and without lawful authority to the extent that whatever transfer has been made, and record sent to learned Executing Court at Faisalabad, same shall be deemed to have been transferred under Section 25-A of the Act of 1964 by this Court today.
Learned Executing Court at Faisalabad is directed to proceed in the matter for satisfaction of the decree in accordance with law. In future, execution proceedings / execution petition, arising out of decree passed by learned Judge Family Court, would be transferred keeping in view the spirit of Section 25-A of the Act of 1964 as well as observations recorded hereinabove. Copy of this judgment be sent to all District and Sessions Judges in the Punjab for its further circulation amongst all Judicial Officers."
In a latter case SAWERA IKRAM versus AMIR NAVEED (PLD 2022 Lahore 600) another learned Single Bench of this Court, however, has adopted some other view. The relevant extract from the same is reproduced below :- "6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, 'Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.'
2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.
3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law."
We feel no cavil to observe here that in presence of judgment in the case of Mian MUHAMMAD ARSHAD versus SABA GUL and 5 others (2022 MLD 1280) the latter Bench who adopted different view in the case of [SAWERA IKRAM versus AMIR NAVEED (PLD 2022 Lahore 600)] should have referred the matter to the Hon'ble Chief Justice for constitution of Larger Bench in case of difference of opinion but it appears that judgment in the case of Mian Muhammad Arshad supra was not brought in the notice of later learned Bench. Guidance in this respect can be sought from Mst. SAMRANA NAWAZ and others versus M.C.B. BANK LTD. and others (PLD 2021 Supreme Court 581). The relevant extract from the same is reproduced below :- "7. We are, however, bound by the judgment delivered by a Bench of co-equal strength, i.e., a three member Bench, in the said case and therefore cannot hold otherwise. It is now a well-established principle of practice and procedure of this Court that the earlier judgment of a Bench of this Court is binding not only upon the Benches of smaller numeric strength but also upon the Benches of coequal strength; a Bench of co-equal strength cannot deviate from the view held by an earlier Bench, and if a contrary view has to be taken, then the proper course is to request the Hon'ble Chief Justice for constitution of a larger Bench to reconsider the earlier view. For, the law declared by this Court should be clear, certain and consistent, as it is binding on all other courts of the country, under Article 189 of the Constitution of Pakistan, 1973. The doctrine of binding precedent promotes certainty and consistency in judicial decisions, and ensures an organic and systematic development of the law.
8. It would be important to mention here that our learned brother, Justice Umar Ata Bandial, was a member of the three member Bench that decided the case of Habib and Company (supra) and was also the member, and author of the order, of the two member Bench that granted leave in C.P.
No.756-L of 2020 (now numbered as C.A. 364-L of 2020) to consider the question under discussion.
This shows that his lordship also doubted the correctness of the view expressed in the said case and deemed it proper to reconsider the same. The two-Member Bench that granted the leave, however, did not make a request to the Hon'ble Chief Justice for constitution of a larger Bench to reconsider the question, for a smaller Bench cannot request for the constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength can make such a request. As a judgment of a larger Bench is binding on the smaller Benches, judicial discipline and propriety demand that a two member Bench should follow decision of a three member Bench, and if a two member Bench concludes that an earlier judgment of a three member Bench is so incorrect that in no circumstances can it be followed, the proper course for it is to set out the reasons why it could not agree with the judgment of the three member Bench and to refer the matter to the Hon'ble Chief Justice for constitution of a three member Bench. If the three member Bench also comes to the conclusion that the earlier judgment of a three member Bench is not correct, then the reference of the matter to a five member larger Bench is justified. A two member Bench cannot jump over a three member Bench and directly ask for constitution of a Bench larger than three member Bench, to review the principle of law declared by that Bench.
9. In these circumstances, we are of the opinion that only a Bench larger than a three member Bench can reconsider the question as to the interpretation of the second proviso to Rule 90 of Order XXI of CPC, and revisit (if found necessary) the view expressed by a three member Bench in the case of Habib and Company v. MCB (PLD 2020 SC 227). We, therefore, direct the office to place the matter before the Hon'ble Chief Justice of Pakistan for appropriate order."
4. The above clearly amounts to a serious disparity and conflict between views of two learned Single Benches, so in order to resolve the matter in issue office was directed to place the same before the Hon'ble Chief Justice for constitution of the Larger Bench. In the wake of above, all these applications are now before us by the orders of the Hon'ble Chief Justice, with a moot question as to "how the execution proceedings/petitions pending before learned Judge Family Court can be transferred to some other place for the satisfaction of decree."
5. Though in these applications there are respondents as well. In some of the cases notice(s) was/were though issued to the respondent(s) whereas in some of the applications, notices have not been issued but we are mindful of the fact that any decision in these proceedings would not cause any prejudice to them, so we opted to proceed with the matter in their absence. To this effect we are also fortified with the judgment of the Hon'ble Apex Court in the case of Mst.
KULSOOM RASHEED versus NOMAN ASLAM (PLD 2021 Supreme Court 579).
6. We have heard learned counsel for the applicants at considerable length and perused the record.
7. Family Courts were established after the promulgation of West Pakistan Family Courts (Act XXXV of 1964) (hereinafter referred to as "Act, 1964") for a specific purpose and object, so as to ensure expeditious settlement and resolution of disputes relating to marriage and family affairs as well as the matters connected therewith, which is even evident from the preamble of the Act ibid. The prime object of the "Act, 1964" appears to be nothing but to protect weaker and vulnerable segments of the society i.e. woman and children and to extend every possible convenience in the process of resolution of disputes. This was the reason that Section 12-A which was though initially not part of the "Act, 1964" but was introduced through Ordinance LV of 2002, whereby Family Courts have been bound down to decide the cases within six months from the date of institution.
8. Adverting to the core issue it is observed that Section 13 of the "Act, 1964" deals with the enforcement of decrees of the Family Court, which reads as under :- "S. 13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.
(2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment or the delivery of property, as the case may be, in the aforesaid register.
(3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court not exceeding thirty days, the same shall, if the Court so directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.
(4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct.
(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.
(Underlining supplied for emphasis)
9. The foremost question before us is "whether Family Court is entirely a different entity or it has some nexus with Civil Court." Though from the bare reading of sub-section (4) of section 13 it clearly manifests that a Civil Court is at par with the Family Court at-least for the purpose of execution of the decree but this perhaps would not be sufficient enough to lay the issue at rest. In this regard we would like to refer Section 6 of "Act, 1964", whereby the supervision of a Family Court has been given to learned District Judge as that of Civil Court in the respect of district. Reliance to this effect can be placed on MUHAMMAD KHALIL versus Mst. ZAHIDA PERVEEN and others (PLD 1991 Lahore 51). The relevant extract from the same is reproduced below :- "5......The question as to whether the Family Court is a Court also does not present any difficulty.
Section 3 of the Punjab Family Courts Act 1964 empowers the Government to establish Family Courts and to appoint a Judge for each of such Courts. It is the thus obvious that the Family Court is a Court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and not a persona designate. This view finds support in the judgment by this Court in Mst. Gaman v. Taj Din PLD 1968 Lahore 987.
The next question which arises is whether the cases before the Family Courts are of civil nature. It was observed by the Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and other PLD 1970 SC 1 that:-- "In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding."
Undoubtedly, the rights which are adjudicated upon by the Family Courts are civil rights. In Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161, it was observed that "Family Court is a Civil Court in every sense despite the exclusion of the Code of Civil Procedure and the Evidence Act, 1872 in their application to proceedings before such a Court". Similar view was taken by a Division Bench of this Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi etc. PLD 1978 Lahore 716, wherein it was laid down that the Family Court was a Civil Court notwithstanding having been created by a special statute and mentioned in the Act as distinct from Civil Court."
10. There is no cavil that applicability of all the provisions of the Code of Civil Procedure (V of 1908)
(hereinafter referred to as "C.P.C.") except Sections 10 & 11 have been ousted to the proceedings before the Family Court in terms of Section 17 of the "Act, 1964" but this was only for the prime purpose to avoid procedural formalities, which may operate as hurdle in the speedy and swift decision of disputes brought before the court under the "Act, 1964". At the same time we feel no hesitation to observe that there is no impediment in the way of Family Court to adopt the procedure provided in the "C.P.C." to foster the justice. Reference to the above effect can be made to Haji MUHAMMAD NAWAZ versus SAMINA KANWAL and others (2017 SCMR 321) and Mst.
SHABNAM BIBI and 3 others versus KHAN BADSHAH and 3 others (2012 MLD 1795).
(hereinafter referred to as "Rules, 1965") which were framed to carry out the purpose of the "Act, 1964". Rule 3 ordains that courts of the District Judge, the Additional District Judge, the Civil Judge, the President of the Majlis-e-Shoora Kalat, and the Qazi appointed under the Dastur-ul-Amal diwani Riasat Kalat, shall be the Family Courts for the purposes of the Act. Rule 7 is more pertinent, which is reproduced below for the purpose of ease of reference :- "7. Suits triable under the Act shall be instituted in, and be heard and tried by, the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the Additional District Judge."
From the bare perusal of above rule, it is clearly evident that there is no mark distinction between a Family Court and the Civil Court. Furthermore Rules 15 to 21 of the "Rules, 1965" eliminates any element of distinction between a Family Court and Civil Court for the purpose of registering of cases, decrees, orders, etc. which are reproduced below :- "15. When a plaint has been filed, its particulars shall be entered in a register to be kept in the form prescribed for Civil Suits under the Code of Civil Procedure, 1908.
16. In every suit, on passing the judgment, a decree shall be drawn up in Form I and shall be signed by the presiding Judge. The decree shall bear the seal of the Court.
17. The Court shall maintain a register of decrees and orders in the form prescribed for decrees and orders under the Code of Civil Procedure, 1908.
18. Whenever any fine is paid under section 15 or section 16 or money or property is deposited with or realized by the Court under the Act or these rules, a receipt shall be given in Form II which shall be serially numbered and the counterfoil thereof shall be kept in the Court.
19. All fines, monies, or property deposited or realized and disbursed by the Court shall be entered in a register in Form III.
20. Where the Court receives any amount payable to a party it shall cause a notice thereof to be served on the party entitled to receive it and shall pay it to the party concerned within four days, so far as may be of his applying therefor.
21. The records of the Court, including its registers, shall be preserved for such period as is provided under the rules of the High Court applicable to Civil Courts."
12. We have noticed that in the case of Mian Muhammad Arshad supra learned Single Bench while dealing with the issue rested findings while being influenced with the plenary language of Section 25-A of the "Act, 1964" generally and more particularly word "proceedings" used therein. As we have already observed that there is no notable difference between Family Court and Civil Court, so general procedure for both the courts would almost remain the same until something is specifically barred or amounts to cause a serious prejudice to any of the party.
13. Section 24 of "C.P.C." is almost similar and akin to Section 25-A of the "Act, 1964", so both the Sections are reproduced below for comparative analysis :- "24. General power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same ; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same ; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of' this section, Courts of Additional and Assistant Judges shall be deemed to subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes."
"S. 25-A. Transfer of cases.-- (1) Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing-
(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district; and
(b) transfer any appeal or proceeding under this Act, from the District Court of one district to the District Court of another district.
(2) A District Court may, either on the application of any party or of its own accord, by an order in writing, transfer any suit or proceeding under this Act from one Family Court to another Family Court in a district or to itself and dispose it of as a Family Court.
(2a) Where a Family Court remains vacant or the presiding officer remains on leave or absent for any reason, except due to vacations, for more than thirty days a District Court may, either on the application of any party or of its own accord, by order in writing, transfer any suit or proceeding from such Family Court to another Family Court in a District or to itself and disposed it of as a Family Court.
(2b) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the Supreme Court may at any stage transfer any suit, appeal or other proceedings under this Act pending before a Court in one Province to a Court in another Province, competent to try or dispose of the same.
(3) Any Court to which a suit, appeal or proceeding is transferred under the preceding sub- sections, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it: Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing directs otherwise."
(Underlining supplied for emphasis)
The above referred both the provisions deal with transfer, entrustment or withdrawal of the proceedings from one court to another and such powers in the case of former provision vest with High Court or the District Court whereas in the latter it falls within the domain of the High Court and the Hon'ble Supreme Court. The scheme and object of both the provisions is, however, seems to be same. If we take into account the principles in the case of Mian MUHAMMAD ARSHAD versus SABA GUL and 5 others (2022 MLD 1280) that in presence of Section 13 of "Act, 1964", for the transfer of any proceeding the resort should be made to Section 25-A of the Act ibid then on the same analogy for seeking transfer of the proceedings under the "C.P.C.", Section 24 can only be pressed, leaving the provisions contained in Part II of Order XXI of "C.P.C." dealing with the execution petitions/proceedings redundant.
14. Needless to observe that execution proceedings are not synonymous to the original proceedings where the court has to make an adjudication of the respective rights of the parties, which ultimately culminates into decree. In the former case the executing court ordinarily is not required to involve itself in the determination of intricate questions of fact or law but to proceed in terms of the decree for its satisfaction.
15. Part II of "C.P.C." deals with the execution and it provides a detailed mechanism for the execution of decree passed by a court. Section 38 of the "C.P.C." lays down that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. We are mindful of the fact that Section 13 of the "Act, 1964" neither provides detailed mechanism for the execution of decree nor caters all the eventualities arising from the execution proceedings. Sub-section (4) of Section 13 of "Act, 1964" places the Family Court and the Civil Court at the same pedestal for the purpose of execution of decree, so in that capacity a court "Family" or "Civil" enjoys all powers of the executing court vested in Part II as well as Order XXI of the "C.P.C.". Section 39 of the "C.P.C." deals with the transfer of decree which empowers the court who passed a decree to send it for execution to another court, on the application of the decree holder. We deem it appropriate to reiterate that once a decree is passed by the Family Court that becomes executable in terms of Section 13 and in case of any hindrance to the same, the learned executing court can adopt any of the mode provided for the execution of the decree in the "C.P.C.".
16. For the foregoing reasons this application as well as all connected applications seeking transfer of execution proceedings are disposed of accordingly leaving the applicants to move the respective executing courts for the transfer of execution proceedings/petitions who shall then proceed with the same in the light of observations recorded hereinabove.
17. Before parting we deem it apposite to direct the office to circulate the copy of this judgment to all the learned District Judges in the Province of Punjab.