SHAHID BILAL HASSAN-J: Succinctly, a decree for recovery of maintenance allowance was passed against Aulad Hussain, deceased on 06.12.2008, which was upheld upto High Court as writ petition was dismissed on 29.06.2010. After dismissal of the writ petition, the judgment debtor transferred his property through mutations No.1859 dated 27.09.2010 and 1871 dated 09.10.2010 on the basis of alleged gift; therefore, the petitioners moved an application before the learned Executing Court for cancellation of said mutations and recovery of decretal amount of maintenance allowance. The said application was resisted by the rival party; however, the learned Executing Court allowed the said application on 09.02.2016. The respondents being aggrieved preferred an appeal and the same was accepted vide impugned judgment dated 04.05.2016 and application ibid was dismissed; hence, the instant revision petition.
2. Heard.
3. The said question has been answered by the Apex Court of the country in a judgment reported as Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), by holding that:- 'The Executing Court through its order dated 14.05.2011 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner. Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of Resondent No.2's own minor daughter. Unfortunately, the Respondent No.2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the Respondent No.2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the Respondent No.2.'
In the present case, the deceased judgment debtor Aulad Hussain transferred the property, owned by him through disputed mutations No. 1859 dated 27.09.2010 and 1871 dated 09.10.2010 on the basis of alleged gift, after dismissal of his writ petition by this Court, which seems to be nothing but an attempt to frustrate the decree passed against him. Therefore, the learned Executing Court was vested with jurisdiction to undo the said illegal act committed by the deceased Aulad Hussain and rightly cancelled the said mutations by allowing application, filed by the petitioners in this regard.
As such, the learned appellate Court has failed to exercise its vested jurisdiction as per mandate of law and has committed illegality while passing the impugned judgment dated 04.05.2016, which cannot be allowed to hold field further. Resultantly, the revision petition in hand is accepted, impugned judgment dated 04.05.2016 passed by the learned appellate Court is set aside and order dated 09.02.2016 passed by the learned Executing Court is restored. No order as to the costs.