' MALIK HAMID SAEED, J.--- The question raised for determination in the instant writ petition filed by Mst. Shamim Ara is; whether an Executing Court or an Appellate Court in the capacity of Executing Court can go behind the decree by setting aside the same, which has already attained finality and as to whether a compromise decree is not liable to be executed in the same manner as of an ordinary decree.
2. The background of the events leading to filing of the present writ petition are that the relationship between the petitioner and respondent No, I as wife and husband became strained, which led the parties to file family suits against each others, i,e, suit for dissolution of marriage, suit for the return of dowry articles, suit for the custody of the minor child and suit for restitution of conjugal rights.
During the course of proceedings in the said suits, the parties, however, arrived at a compromise on the terms that, the husband shall provide to the wife a separate house; that the husband shall pay dower in the shape of gold ornaments; that the husband shall shift the dowry articles to the new separate house and that the wife shall reside with her husband in the said house. A specific period for doing the needful was also provided in the compromise. The suits of the parties were accordingly decreed against the wife and husband in terms of the compromise.
3. After the due date as mentioned in the compromise deed, the wife/petitioner filed a fresh suit for the dissolution of her marriage on the ground of Khula'. The said suit was accordingly decreed in her favour against which the husband/respondent filed a writ petition in this Court but the same was dismissed on 3-12-2001. The stand of the husband/respondent was that he is ready to honour his commitment under the compromise if his wife also fulfills her obligations for which she is reluctant under the pressure of her parents.
4. The petitioner/wife thereafter filed execution petition in the competent Court for executing the decree for the return of dowry articles against the husband/respondent. An objection was filed that the decree in question is not executable because the wife/petitioner has already obtained Khula' divorce whereas the decree against the husband was only for shifting the dowry articles to the separate house without any direction of its handing over to the wife or paying the value thereof; and that the execution of the decree would amount to partial execution as against the whole decree. The Executing Court vide order, dated 12-9-2001 dismissed the objection. The respondent/husband went in appeal before the learned Additional District Judge/Izafi Zilla Qazi-II, Swat, who vide his order, dated 28-11-2001 accepted the appeal, set aside the impugned order, dated 12-9-2001 as well as the order/decree, dated 28-3-2000 in favour of the wife/petitioner and remanded the case to the trial Court with the directions to restore the suit of the wife/petitioner for the return of dowry amount and to decide the same on merits after affording an opportunity to the defendant/husband to lead evidence. Hence the present writ petition.
5. As is evident from the above facts, the decrees of the learned trial Court were imposing certain obligations on both the parties in the light of the terms of the compromise arrived at between the parties. The petitioner, however, later on realized that she cannot live with her husband within the limits of God because of the hatred developed, so she preferred to obtain divorce from the husband on the ground of Khula', in which she succeeded in spite of the request of the respondent before the trial Court as well as before this Court to do the needful as required under the compromise decree if the petitioner/wife is also ready to perform her obligation under the same.
Now, the position is that the suit for restitution of conjugal rights and decree granted to the husband in this respect is out of execution because of the grant of decree to the petitioner for dissolution of her marriage with the respondent through Khula'. In these circumstances, the execution of the decree in favour of the wife/petitioner for the return of the dowry amount, which is granted to the petitioner on the ground of compromise, would certainly amount to execution of a partial decree in her favour, which is not just and proper as the Executing Court cannot do the same because the wife/petitioner has already released herself from performing her obligation on her side under the said decree granted in favour of the respondent/husband. The authorities reported in AIR' 1956 SC. 359 and AIR 1972 SC 726, are on the same proposition and thus, helpful in this case, which answers the questions raised by the petitioner as under:-- "When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the Executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an Executing Court cannot do.
' There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an Executing Court cannot do.
' It is clear from what we have stated that decree imposed mutual obligations on both the appellant and respondent in such a way that, the performance by one is conditional on the performance by the other and accordingly no execution can be ordered unless the party seeking execution not only offers to perform his part but when objection was taken, satisfy the Executing Court that he was in a position to do so."
' In this case, the husband/respondent under the decree was bound to shift the dowry articles to the new house and the wife/petitioner was bound to' live in the said house as wife of the respondent. The wife did not choose to live with the husband and obtained Khula' divorce, hence she cannot ask for execution of the decree for the return of the dowry articles, when the same was not decreed on merits but merely on the terms of the compromise the same was granted without recording the evidence of the husband/respondent.
6. For the aforesaid reasons, we are of the view that if the petitioner is allowed to execute the decree in question. It would amount to an act on the part of the Executing Court to go behind the decree, which cannot be done because seeking partial execution of decree by a person without fulfilling his own obligation under the same disentitles him from seeking the requisite relief. In the circumstances, the impugned order passed by the learned Additional Sessions Judge is not suffering from any illegality which is well-reasoned and does not call for any interference from this end. The writ petition in hand is hereby dismissed in limine alongwith civil miscellaneous.