Dr. Khurshid lqbal, J.-
1. By this judgment, we propose to dispose of the subject writ petition and the connected one bearing No.1307-P/2025--Waqar Khan Vs. Mst. Taqiya Begum filed under Article 199 of the Constitution, as facts and the issue involved in both the petitions, are common.
2. The petitioner, Mst. Taqiya Begum, challenged the order dated 14.02.2025 passed by the learned Judge Family Court (JFC), Swabi. By means of the said order, the learned Court, on an application of Waqar Khan, directed the bailiff of the court and the SHO concerned, not to interfere with the house, the ownership and possession of which was sought in execution proceedings of an ex-parte decree passed by the JFC in Peshawar.
3. The respondent Waqar Khan, on the other hand, assailed the orders dated 19.12.2024 and 30.01.2025 by which the learned executing court in Peshawar sought details of the decreed house in Swabi and issued its possession warrant.
4. Brief facts of the case are that a JFC in Peshawar, has passed an ex-parte decree in favour of the petitioner for recovery of dower, in shape of 20 toals gold ornaments, a 10 marla house, maintenance allowance and dowry articles. Presently, the proceedings for execution of the decree are pending before the Court in Peshawar. The petitioner submitted in the executing court in Peshawar the information that the house is situated in village Torlandi, Swabi. The executing court issued warrant of possession of the house. The respondent filed an objection petition against the order of possession, in the Court of JFC Swabi, who suspended the order of the Court in Peshawar.
5. We heard learned counsel of the parties at length and perused the record made available to us.
6. So far as the issuance of warrant for delivery of possession of the house situated in village Torlandi, Swabi, is concerned, the learned JFC Peshawar has no territorial jurisdiction in the matter.
Though the learned JFC in Peshawar is seized of the matter pertaining to the execution of the ex- parte decree passed by her. However, the house in question is situated in Torlandi, village of Swabi District. Under the law, the learned executing court in Peshawar was required to have either attached the house by means of issuance of precept or transferred the decree to the court in Swabi under Sections 39 and 46 of the Code of Civil Procedure (CPC).
7. While on the other hand, the decree of the petitioner to the extent of decretal house was about to satisfy, learned JFC Swabi (respondent No.3) vide his impugned order dated 14.02.2025 restrained the Bailiff as well as the SHO concerned from further proceedings, which is not sustainable in the eye of law. The reason is that he has no power to suspend a warrant of possession issued by a court of the same jurisdiction in Peshawar. Needless to mention, the decree has been passed by the JFC, Peshawar, and execution proceedings are also pending before the said court. It follow that both the courts have erred, while passing the impugned orders. It needs no emphasis that the decreed house is situated in District Swabi, the proper course is to transfer the decree to that extent to the court in Sawabi.
8. The issue of transfer of a family court decree in execution proceedings has been settled. The latest view is of this court in Mst. Zaibi v. Zahid Ali and other (PLD 2024 Peshawar 197) in which the decree passed by a JFC in Nowshera was ordered to be transferred to Charsadda where the judgment debtor was residing. The Court underlined that the West Pakistan Family Court Rules, 1965, are silent on the issue. However, there are numerous judicial opinions that keeping in view the nature of jurisdiction conferred under the West Pakistan Family Courts Act, 1964, a JFC may take recourse to the provisions of the Civil Procedure Code, 1908 (CPC). A recent Supreme Court ruling is Muhammad Arshad Anum v. Mst. Khurshid Begum and other (2021 SCMR 1145). The hon'ble Court held that though the provisions of the CPC except section 10 and 11 and of the Qanun-e-Shahadat Order, 1984 are excluded from proceedings before family court for expeditious settlement and disposal of disputes, but such court doesn't lose its status as a court, nor does it take away its inherent jurisdiction to protect orders and decrees. In "Haji Muhammad Nawaz vs. Samina Kanwal and others" (2017 SCMR 321) the august Court has ruled: "Family Court, whether as a trial court it an executing court, are governed by the general principles of equity, justice and fair play." Reference may also be made to "Muhammad Tabish Naeem Khan Vs. Additional District Judge, Lahore and others" (2014 SCMR 1365), in which it opined that a family court "can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial [...]." In Mst. Amman Gul v. Judge Family Court Rawalpindi and others, 2023 CLC 1300, the Court has held that a family court may transfer execution proceedings under section 39 of the CPC.
Itsrelevant para read:
9. 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.".
10. For reasons recorded above and the legal principle relied upon, we allow both these petitions and set aside the impugned orders of both the courts. The learned JFC/executing in Peshawar shall, on application of the petitioner/decree holder, transfer the decree regarding 10 marla house in lieu of dower, to Sawabi. We also direct the JFC in Sawabi to club the execution proceedings with the objection petition filed by the respondent and decide them according to law.