1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the Order of the Shariat Court dated 16-3-1995, whereby the order of the Magistrate made under section 488, Cr.P.C.
2. Was set aside and the case was remanded.
3. ' The brief facts of the case are that Umran Khan, a minor, through his mother Mst. Rukhsana Bibi, moved an application under section 488, Cr.P.C., before the Revenue Magistrate, Mirpur, for maintenance allowance to the tune of Rs,400 per month. His application was accepted and he was granted maintenance allowance as prayed for. A revision petition was preferred by the, appellant herein, to the High Court and the maintenance allowance was reduced from Rs,400 to Rs,250 per month. An application was submitted before the Magistrate by the minor for the recovery of the arrears of the maintenance allowance. However, as a result of establishment of the Family Courts, the file of recovery proceedings was transmitted to the concerned Family Court in view of the relevant provisions of law. After receiving the notice from the Family Court, the appellant paid Rs,1,500 out of the arrears of Rs,13,500; the Family Court adjusted Rs,1,000 against the earlier arrears while Rs,500 were adjusted against arrears which pertained to the period during which the revision petition of the appellant remained pending in the High Court. The Family Court ordered the payment of the remaining arrears by instalments. A revision petition was preferred to the Shariat Court against the Order of the Family Court which was accepted and the order of the Family Court was set aside. The Shariat Court expressed the opinion that while acting under section 488, Cr.P.C.
4. The Family Court had no jurisdiction to order the payment of maintenance allowance in instalments; it was observed that the Family Court should have proceeded under the provisions of section 488 '(3), Cr.P.C. Instead of ordering the payment by instalments.
5. ' We have heard the arguments. It has been argued by Mr. Muhammad Ayub Sabir, Advocate appearing on behalf of the appellant that no revision petition was competent to the Shariat Court under the provisions of Azad Jammu and Kashmir Family Courts Act, 1993 (hereinafter shall be called as Family Courts Act). He has further submitted that the Shariat Court did not decide this point in view of relevant law. The learned counsel referred to section 14(1) of the Family Courts Act and has argued that a decision or a decree passed by a Family Court shall be appealable to the Azad Jammu and Kashmir Shariat Court only. The learned counsel maintained that under section 17 of the Family Courts Act, the application of Qanoon-e-Shahadat and Civil Procedure Code has been excluded in the proceedings under the Family Courts Act. Thus he submitted that there is no legal justification for holding that the revision petition was competent before the Shariat Court.
6. (Underlining is ours)
7. ' In reply Mr. Muhammad Azam Khan, the learned counsel for the respondent, has argued that even if it is assumed for the sake of arguments that the revision petition was not competent to the Shariat Court, it could treat the same as an appeal, especially so when the revision petition was filed before it within the period prescribed for appeal.
8. We have given our due consideration to the matter. In view of the provisions contained in section 14 of the Family Courts Act, no revision is competent to the Shariat Court. Therefore, we agree with the contention of the learned counsel for the appellant that the revision petition to the Shariat Court was not tenable as such. However, we are of the view that as the revision petition to the Shariat Court was filed within the period prescribed for filing an appeal, the same could be treated as an appeal. Although it was not done so by the Shariat Court yet we hold that the impugned order shall be deemed to have been passed by the Shariat Court in exercise of appellate jurisdiction and not the revisional jurisdiction.
9. ' Now the next question which needs resolution is as to whether the Family Court could order the recovery of the maintenance allowance in instalments. Our attention was drawn to subsection (5) of section 13 of the Family Courts Act which is as under:- "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 instalments as it deems fit."
10. The question which falls for resolution is to whether the impugned order would be deemed to be a 'decree' within the meanings of subsection (5) of section 13. It has already been pointed out that the provisions of Civil Procedure Code are not applicable to the proceedings under the Family Courts Act. Thus the definition given to word 'decree' in C.P.C. Cannot be pressed into service by one party or the other in support of their respective contentions. It may be pointed out that under subsection (3) of section 488 Cr.P.C. The Magistrate is empowered to issue a warrant for recovering the amount due under section 488, Cr.P.C. As if it was levying fine. This implies that the provision contained in section 386, Cr.P.C. Which deals with the warrant issued for recovery of fines would apply to-the recovery proceedings in which warrant under subsection (3) of section 488, Cr.P.C.
11. Has been issued. A reference may be made to the case reported as `Labh Singh v. Mt. Punjab Kaur'
12. (AIR 1941 Lah. 360) wherein it has been held that the amount under section 488 should be realised as if it was an amount of fine under the Code of Criminal Procedure. The perusal of subsection (3) of section 386 shows that where the Court issues a warrant to the Collector under subsection (1), clause (b) of section 386, Cr.P.C. Such a warrant shall be deemed to be a 'decree' and the Collector to be the 'decree-holder', within the meaning of the Code of Civil Procedure, 1908. This implies that word 'decree' used in subsection (5) of section 13 of the Family Courts Act would apply to an order passed under section 488 in recovery proceedings even if that is not a 'decree' within the meanings of Civil Procedure Code. We are fortified in our view by the meanings of word 'decree' given in Law Dictionary which are as under:-- "Decree' means, the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit--(a) any adjudication from which an appeal lies as an appeal from an order "
13. ' Again according to Webster's Third New International Dictionary' the word 'decree' has been assigned the meanings:-- "to command or enjoin authoritatively: to settle or decide (a legal cause) by a judgment: to determine or order judicially by authority or by decree."
14. It is evident from the above that the word 'decree' appearing in subsection (5) of section 13 of the Family Courts Act cannot be assigned restricted meanings given to it by the Code of Civil Procedure. Therefore, we are of the considered view that the word 'decree' appearing in the aforesaid provision would include an order passed in the recovery proceedings of maintenance allowance and thus the Family Court was legally competent to order the payment of the arrears of maintenance allowance by instalments.
15. ' In light of what has been stated above we set aside the impugned order of the Shariat Court and restore that of the Family Court.