Brief facts of this case are that there were three family cases of the following nature pending in the Court of Judge, Family Court, Rawalpindi: --
(1) Suit for the recovery of dower;
(2) Suit for restitution of conjugal rights; and
(3) - Suit for maintenance allowance.
All the three suits were pending in .One Court and were disposed of simultaneously by the learned Judge, Family Court, Rawalpindi.
2. Suit for restitution of conjugal rights was decreed in favour of the plaintiff. Suit for maintenance allowance was also decreed and the defendant was directed to pay Rs.500 per month as maintenance allowance to the plaintiff. As regards the 3rd suit, it was decreed in the following terms: -- "Issues Nos.2/A and 2/B: These issues are regarding the payment of dower. The version of the defendant is that he had paid the dower. The perusal of Nikah Nama shows that Rs.25,000 was fixed as deferred dower payable on demand and a house which has been described in para. No. 16 of the Nikah Nama has been maintained. On the other hand there is no solid tangible evidence from the side of defendant that this dower amount has been paid. The defendant has failed to produce evidence that the dower has been actually paid. In the absence of any evidence up to the mark, this issue is not proved.
Issue No. 2/A is also not proved and decided against the defendant. According to para. No. 14 of the Nikah Nama the dower is deferred and payable on demand. The plaintiff has rightly demanded her dower. The defendant has failed to prove that the dower has been paid, hence these issues are decided against Muhammad Ashiq. "
This order was passed by Mian Arshad Mahmood, Judge, Family Court, Rawalpindi, on 27-5-1991.
Even the decree sheet was prepared accordingly showing the recovery of dower at Rs.25,000 and a house.
3. Against the judgment and decree, dated 27-5-1991 regarding the dower and maintenance allowance passed by the learned Judge, Family Court, Rawalpindi, two appeals were filed by the present petitioner. So far as the matter regarding maintenance allowance, it was settled at appellate stage by upholding the decision of the lower Court by Khan Sana Ullah Khan Sial, A.D.J.
Rawalpindi, in para. 8 of his judgment delivered on 7-1-1992. As regards the other pait regarding the recovery of dower is concerned, learned Additional District Judge took up that matter and gave his remarks in para. 9 of the judgment, which are reproduced below: -- "As regards the amount of dower it is to be paid on demand and law prescribes no fixed date for demanding the same. It was fixed as Rs.25,000 and allowed by the Court below to' the respondent without adding or subtracting anything there from. "
According to this para., the learned Judge came to the conclusion that the dower amount is only to the extent of Rs.25,000. The wording of the learned Additional District Judge is very clear when he states that "it was fixed as Rs.25,000 and allowed by the Court below to the respondent without adding or subtracting anything therefrom. " Here it may be noted that the learned Additional District Judge has not mentioned the portion of the house as dower to be paid/delivered to the plaintiff-respondent. Although the appeal was dismissed yet the implication of para. 9 is to be read in conjunction with the order passed by the learned Judge, Family Court. To some extent, it modifies the judgment of the trial Court. Undoubtedly, the direction and observation of the appellate Court being a superior Court is to be given preference over the orders passed by the Judge, Family Court. As such, the amount to be recovered is only Rs.25,000 and nothing less or nothing more.
4. After the dismissal of the appeal by the learned Additional District Judge vide his judgment and decree, dated 7-1-1992, the decree--holder/respondent filed execution petition for the recovery of dower. That application is on record of this Court. Through the said application, the decree--holder applied for the recovery of Rs.25,000 and a house located at Nawab Abad, Rawalpindi. Thus, the execution of the decree was two-fold: (1) cash; and (2) obtaining of possession of the house. The judgment-debtor was given notice by the Executing Court. On appearance, objection petition was filed raising objection that the judgment-debtor is liable to make payment of only Rs.25,000 and nothing less. The decree-holder has no right whatsoever to put claim on the house because it is not so mentioned in the judgment of the learned Additional District Judge, dated 7-1-1992 particularly by referring to para. 9. Regarding the objection, notice was given to the other side and it was argued before the learned Executing Court. The Executing Court rejected the objection vide his order dated 10-1-1994 holding that not only Rs.25,000 are to be recovered but the house be also handed over to the decree-holder by the judgment-debtor. Photostat copy of the order is on record. Against that order, the present petitioner filed appeal before the District Judge, Rawalpindi, which was disposed of by Malik Ata Rasool Joya, learned A.D.J. Vide his order, dated 10-3-1994. He, too, dismissed the appeal and rejected the objection. The present civil revision has been filed challenging the validity of the order, dated 10-1-1994 passed by the Judge, Family Court and the appellate order, dated 10-3-1994 whereby the judgment-debtor/present petitioner has been directed to make payment of Rs.25,000 in cash and deliver the possession of house to the decree- holder. '
5. Learned counsel for the petitioner submits that the impugned orders are liable to be set aside on the grounds that both the lower Courts have committed errors in making interpretation and finding out the implication of the entries made in the Nikah Nama of the parties, wherein column Nos. 13, 14 and 16 are relevant, which have been quoted in the impugned order of Malik Ata Rasool Joya, learned A.D.J., Rawalpindi; that it is not within the competency of the Executing Court and that of the Additional District Judge to find out the quantum of dower and its nature as to whether it includes the house or not; that the said Courts had to clarify the affairs keeping in view the judgment dated 7-1-1992 delivered by Khan Sana Ullah Khan Sial, Additional District Judge, in which para. 9 is a clarying factor which deals with the quantum of dower; that none of the Courts below was competent to make changes or modify the order passed by this appellate Court that whatsoever has been stated in judgment dated 7-1-1992 of the A.D.J. It is to be understood and applied in its letter and spirit; that it is very open to a naked eye that Rs.25,000 only has been fixed as dower amount by the A.D.J. And nothing more or nothing less; that modification order dated 7-1- 1992 of the learned A.D.J. Is to be kept in view and the judgment and decree of the trial Court is to be read with that; that it is mandatory for the Executing Court to recover Rs.25,000 as dower amount; that both the lower Courts have started looking and interpreting the entries made in the Nikah Nama which was the function of the trial Court and the appellate Court and that the Courts below have committed mistake and have exercised the jurisdiction illegally and improperly while dealing with the objection matter.
6. Learned counsel for the decree-holder/respondent, on the other hand, prays that it was within the competency and powers of the Executing Court to come to the conclusion by considering all the relevant documents about the quantum and nature of the dower; that both the lower Courts have rightly concluded that the dower amount fixed was Rs.25,000 and a house; that judgment dated 7-1-1992 delivered by Khan Sana Ullah Khan Sial, A.D.J. Categorically speaks about the dismissal of the appeal of the judgment-debtor; that since the judgment and decree of the lower Court has been maintained by Sana Ullah Khan Sial, A.D.J., therefore, the dower was not only cash but also a house; and that the objection petition filed by the present petitioner was rightly rejected by both the Courts below.
7. I have heard the learned counsel for the parties, gone through the record and read all the orders and judgments referred herein. The dispute in this case is--- (a)what is the dower and its nature?
(b)what has been decreed whether it includes house or not?
(c)what is the effect of the judgment of Khan Sana Ullah Khan Sial, A.D.J. In the matter? And (d)whether the objection petition was rightly rejected or not, and the Executing Court and Appellate Court in the matter of execution dealt with and considered the matter in question by rightly exercising the--jurisdiction or not?
8. In brief, suit for the recovery of dower was filed where the claim was for Rs.25,000 and a house by the lady which was decreed by the Judge, Family Court: Against that judgment and decree, appeal was filed which has been disposed of by Sana Ullah Khan Sial, A.D.J., vide judgment dated 7-1-.1992.
Para. 9 of the judgment is quite relevant with regard to the quantum of dower. It is crystal clear front the judgment that he concluded that the dower amount recoverable is only Rs.25,000 and nothing more or nothing less. He modified the order of the trial Court meaning thereby that the executable decree was only with regard to cash amount i.e. Rs.25,000 only and nothing else. Thus, the only competency of the Executing Court was to execute the decree as it is. He had no authority to go behind the decree and look towards the documents which were the piece of evidence (Nikah Nama) during the execution proceedings. He could have considered those had there been any ambiguity. The judgment delivered by Khan Sana Ullah Khan Sial, learned Additional District Judge became final and could not have been given interpretation of their own except to be understood that had been written in para. 9 of the judgment. It is not the job of the Executing Court to add or omit as far as the order of Khan Sana Ullah Khan Sial is concerned. Thus, the order passed by the Executing Court in rejecting the objection petition is not sustainable. Similar is the case with the order passed by Malik Ata Rasool Joya, learned Additional District Judge while dealing wt m the question of objection filed by the present petitioner seeking clarification regarding the quantum of dower. Suffice it to say that Malik Ata Rasool Joya, learned Additional District Judge was not sitting as Court of appeal to make changes in the order passed by the appellate Court i.e. Khan Sana Ullah Khan Sial, learned A.D.J. Here, to my mind, the confusion came in when the Executing Court and Malik Ata Rasool Joya, A.D.J., went forward to interpret the entries of the Nikah Nama. Being the Executing Court and dealing with the objection, both these Courts were not legally justified to enter that arena of interpretation with regard to the original fixation of dower amount/property.
In view of the above discussion, the present civil revision is accepted, the impugned orders regarding the objection petition are set aside and the Executing Court is directed to recover Rs.25,000 from the judgment-debtor to be paid to the decree-holder, in case not already paid.