' AJMAL MIAN, C.J.--This petition is directed against the Execution Application No,9 of 1980 filed in the Court of Family Judge Court No,II/A.S.J. XII Karachi, by the respondent No,2.
2. The brief facts leading to the filing of the above petition are that respondent No,2 filed Family Suit No,331 of 1979 against the present petitioner for restitution of conjugal rights, which was decreed on 5-12-1979. Since after the passing of the above decree the petitioner had not joined respondent No,2, he filed aforesaid execution application on 19-4-1980, in which he sought the attachment of movable property belonging to the petitioner and to her mother under Order XXI, Rule 43 C.P.C.
Upon the above Execution Application the attachment order was issued with police aid. Thereupon the petitioner has filed the present petition.
3. In support of the above petition, Mr. U. Niamat Moulvi, learned counsel for the petitioner has urged as follows:
(i) That since section 17 of the Sind Family Courts Act, 1964, (hereinafter referred to as the Act), expressly excludes the application of the provisions of the Civil Procedure Code, except sections 10 and 11, the respondent No,2 could not have filed the above execution application under the C.P.C.;
(ii) that in any case the execution application could have been filed in terms of Order XXII, Rule 32, C.P. C. After respondent Noi2 would have called upon the petitioner to join him, and upon her refusal, and
(iii) That the attachment in respect of movable property belonging to the petitioner's mother 'could not have been sought. On the other hand, Mr. Abdul Majeed Khan, learned counsel for the respondent No,2 has submitted as under:
(i) That there is no bar for pressing into service the provisions of the C.P.C. For execution of a decree for conjugal rights passed by a Family Court in the absence of any special procedure provided for in the Act.
(ii) That as regards the other two submissions he has candidly conceded that Order XXI, Rule 32 is applicable and not Order XXI, Rule 43, C .P.0 . And that the attachment of the petitioner's mother's property could not have been sought. He has also submitted that admittedly the petitioner refused to join the respondent No,2 after the passing of the decree and the execution application was competent.
4. Adverting to the first submission of Mr. U. Niamat Moulvi that section 17 of the Act expressly excludes the application of the provisions of C.P. C., except sections 10 and 11, it may be observed that in support thereof he has referred to the above provision. It is true that under subsection (1) of section 17 it has been provided that "save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908, except sections 10 and 11, shall not apply to proceedings before any Family Court" but we have to refer to section 13 of the Act which relates-to the execution of a decree passed by a Family Court. The above section provides the manner for execution of a money decree under its subsection (3) by providing that "where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so direct, be recovered as arrears of land- revenue and on recovery shall be paid to the decree-holder". However, there is no special provision providing the manner or mode of execution of a decree for the conjugal rights. Subsection (4) of section 13 refers to the execution of the decree in general terms by providing that 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. In other words under the above subsection (4) either the Court who has passed the decree can execute the decree or any other Civil Court as the District Judge may by special or general order direct. It is, therefore, evident that the power to execute any decree passed by a Family Court is conferred on the Family Court and also on the other civil Courts which may be named by the District Judge by a special or general order.
' In our view, if the power to execute the decree is conferred on a Family Court and no procedure has been provided for execution of a decree for restitution of conjugal rights, the Family Court may follow the procedure contained in the C.P.C.
' In this regard, Mr. Abdul Majeed Khan has referred to the case of Lal Muhammad and another v.
Mst. Niaz Parwara reported in PLD 1970 Pesh. 52, and the case of Ijaz Ahmad Siddiqui v. The District Judge, West Karachi, etc. Reported in 1988 CLC 634. In the former a learned Single Judge of the Peshawar High Court while construing section 13 of the Act has held that a decree for restitution of conjugal rights can be executed by a Family Court in the manner provided for in the C.P. C. As there is no other provision for the execution of such a decree provided for in the Act, whereas in the latter case a learned Single Judge of this Court took the view that it is discretionary for a Family Court to get the decree for dower or maintenance executed as arrears of land revenue under subsection
(3) or get it executed under subsection (4) of section 13 resorting to Order XXI, C.P.C.
' Whereas Mr. U. Niamat Moulvi has referred to the case of Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and 3 others, reported in PLD 1967 Lah. 977, in which a Division Bench of the erstwhile High Court of West Pakistan at Lahore while dealing with a case under Guardians and Wards Act, 1890 has held that since the application to a family Court of the Evidence Act and C.P.C. Has been definitely excluded, the same cannot be applied through back door. The above case has no application to the present case inasmuch as when the power to execute a decree, which includes' a decree for conjugal rights has been conferred on the Family Court under subsection (4) of section 13 of the Act, the manner of execution is left to the discretion of the Family Court and while exercising the discretion, if it presses into service the provisions of C.P.C., in our view, the Family Court does not violate any provision of law.
5. Adverting to the other two submissions of Mr. U. Niamat Moulvi, we are inclined to agree with him that the proper provision of the C.P.C. Applicable in a case for execution for a decree of conjugal rights is Order XXI, Rule 32, C.P.C. And not Order XXI, Rule 43, C.P.C. As mentioned in the execution application and, secondly, that the movable property belonging to the petitioner's mother cannot be attached in the execution of a decree for conjugal rights against the petitioner.
6. We would, therefore, allow the above petition to the extent of declaring that the petitioner's mother's property is not liable to be attached and that the proper provision applicable to the instant case is Order XXI, Rule 32, C.P.C. And not Order XXI, Rule 43, C.P.C.
' The petition stands disposed of in the above terms with no order as to costs.