Brief facts of the instant writ petition are that respondent No.4 minor son filed a suit for recovery of maintenance allowance against the respondent No.3-father. Learned Judge Family Court decreed the suit vide judgment and decree dated 31-3-1992 at the rate of Rs.400 per month from 20-1-1988 till respondent No.4 attains the age of majority. Execution petition was filed before the learned Judge Family Court, Sialkot. This execution petition was transferred to the Court of learned District Judge, Gujranwala on the ground that property of respondent No.3 judgment-debtor is situated at Gijranwala. Learned executing Court, Gujranwala issued the process of execution and ordered for auction of the property on 26-8-1993. Sale certificate was issued in favour of respondent No.5 Inam ul Haq. Respondent No.3 judgment-debtor filed an objection petition before the learned executing Court for cancellation of auction and return of property belonging to the judgment-debtor on the basis, that the decretal amount is to be assessed as arrears of land revenue and the learned Family Court has to act as a revenue Court and not as a Civil Court under the provisions of C.P.C.
And auction of the property was illegal and that the house which is put to auction was worth Rs.2,50,000 and the auction was confirmed in Rs.55,000 while the decree was of the value of Rs.24,000 and the judgment-debtor is ready to pay the decree and while auctioning the property the household items were also auctioned and it was with the connivance of the staff. This application was resisted by the minor as well as the auction---purchaser Inam ul Haq. Learned executing Court formulated the following issues:--
(i) Whether the auction of the house of petitioner was illegal ? OPP
(ii) Whether the petition is within limitation? OPP (i.e) Whether this Court has got no jurisdiction? OPR
(iv) Whether the application is of mala fide? OPR
(v) Relief.
Evidence was produced and vide order dated 29-1-1999 the learned executing Court observed that order of general law of auction was not observed. According to law the interval of 30 days must lapse between the date of sale and the date of proclamation. The proclamation is to be fixed on the Court house and on the property of judgment---debtor. The Court has not fixed the date for the proclamation to be fixed on the Court house in respect of the property of the judgment-debtor.
The order of auction is silent in this respect, therefore, it is an irregular auction and as under section 13(3) of the West Pakistan Family Courts Act, 1964 the decretal amount is to be recovered as arrears of land revenue and procedure should be adopted in accordance with Land Revenue Act, 1967 but no such procedure was adopted by the Court, therefore, the Court decided all the issues in favour of the judgment-debtor set aside the auction proceedings and sale certificate subject to the deposit of Rs.50,000 tentatively in the Court not later than 5-7-1999. The judgment-debtor deposited the aforesaid amount within the requisite time, which was received by the auction- purchaser Inam ul Haq as well as the decree-holder whose decree earlier was satisfied. On 4-10- -1999 an application under section 12(2), C.P.C. Was given by Muhammad Ramzan and Khan Muhammad. Both the applicants disclosed in the application that they are owners in possession of the disputed property through registered-deeds from the auction---purchaser and through Mutations Nos.32019 and 32127 vide Jamabandi for the year 1993-94, they have constructed house over the disputed property and prayed that the order dated 29-1-1999 cancelling the auction as well as sale certificate be reviewed as the application of the judgment-debtor is based on fraud as he deliberately did not make the present applicants as party and that the application for cancellation of auction was beyond the jurisdiction of the Court as the auction was conducted in the sum of Rs.55,000 and the application was not maintainable, therefore, order dated 29-1-1999 be reviewed and cancelled. This application was turned down by the learned Civil Judge 1st Class, Gujranwala on the basis that the impugned order dated 29-1-1999 has become final as no appeal or revision was filed against that order. Inam ul Haq has not disclosed the fact that he has further sold the property to the applicants as the property was sold during the proceedings of the objection petition the law of "Lis pendens" is fully applicable and the Court being a Family Court and Executing Court passed the order under the Family Laws where review is not applicable, therefore, the learned Court dismissed the application.
2. Learned counsel for the petitioners submits that the provisions of section 12(2), C.P.C. Applies to the proceedings in Family Court relies on "Wahid Bakhsh v. Judge Family Court/Senior Civil Judge, Multan" 1992 CLC 1241. He further argues that Order XXI and onward rules of C.P.C. Apply to the execution proceedings as the Family Court is a Civil Court and the decree is to be executed in view of Order XXI, rule 30, C.P.C. Relies on "Muhammad Farid Khan v. The Civil Judge-I, Abbotabad and others" 1989 CLC 1630, "Qurban Ali Khan v. IV Civil and Family Judge (Central), Karachi and another"
PLD 1993 Karachi 159, "Dilawar Shah v. Executing Court of VII Senior Civil Judge and others PLD 1996 Karachi 174, "Ghulam Rasul and others v. Muhammad Yousaf and another" 2001 SCMR 1761, "The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others" PLD 1975 SC 331.
That the observation made by the learned Executing Court that the limitation of 30 days is mandatory provision in the proclamation and auction. This rule has been amended and for the word 30 days it is 15 days and for the word 15 days it is now one week. Application for cancellation of auction was hopelessly time-barred. It was filed after 5/6 months of the execution and even the learned Court has made irregularities while not directing Muhammad Tufail to produce his power of attorney. The applicants being bona fide purchasers were necessary parties under Order XXI, rule 92, C.P.C. Relies on AIR 1921 Patna 293, AIR 1958 Patna 312, AIR 1957 Patna 211 and AIR 1993 Calcutta 118, where it is held that no person can be condemned unheard, therefore, the impugned order for cancellation of auction is liable to be set aside.
3. Learned counsel for the respondents argued that the maintenance allowance was granted to the minor son against father. It was purely a matter between father and a son. The applicants are strangers to the litigation. Auction was completely irregular and illegal. The judgment-debtor deposited double of the decretal amount and the auction-purchaser Inam ul Haq took the money.
He was the person who resisted the application filed by the judgment-debtor before the learned Executing Court and in his reply he never at the evidence stage or arguments stage disclosed that he had sold the property. This matter was brought to the knowledge of the Court and knowledge of judgment-debtor by the present applicant after corroboration. The judgment-debtor was completely ignorant about the alleged transaction of sale to the present applicants. Moreover, the decree was granted to benefit the minor. Applicants gave application after ten months and three Courts below gave concurrent findings against them. The sale was conducted by Inam ul Haq if the present applicants have any grievance, they can go to the Court of general jurisdiction and file a suit against the auction-purchaser Inam ul Haq, who took the money and went away and why the judgment-debtor should suffer for an act of a person who was not a party to the suit.
4. I have heard the learned counsel for the parties and perused the record. First point of law which is to be decided is whether C.P.C. And Order XXI as such applies to the Family Court proceedings? A decree passed by the Family Court is to be executed in the manner prescribed by section 13 of the West Pakistan Family Courts Act, 1964. Section 13(3) provides 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 directs be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder. When this section is read with section 17 of the Family Courts Act, 1964 where it is provided by this Act that provisions of Evidence Act and C.P.C. Except sections 10 and 11 shall not apply to the proceedings before any Family Court. Provisions of this rule is (II) which provides that sections 8 to 11 of the Oaths Act shall apply to all proceedings before the Family Courts. Family Courts Act creates a special course for decision of matters. Code of Civil Procedure and Evidence Act are not made applicable to a case before the Family Court, reason is that the Courts are given an inquisitional jurisdiction through special procedure provided under the Act and this regulates the family matters and possibilities of amicable settlement "Muhammad Azam v.
Muhammad Iqbal" PLD 1984 SC 95. The objection of exclusion of the provisions of C.P.C. And Evidence Act is that legal battles of the spouses be fought on plain grounds and to make easier the excess to justice and the course of justice. While reading both these sections together I am not convinced by the arguments advanced by learned counsel for the petitioners that the provisions of section 12(2), C.P.C. Apply to the family matters. These are special Tribunals with special law and the Family Courts are regulated, supervised and the parties' rights are guarded under the provisions of the Family Courts Act. In view of "Malik Khizar Hayat Khan Tiwana and another v. Mst.
Zainab Begum and others" PLD 1967 SC 402 the contention raised by the parties for application for C.P.C. Was held as that it would apply ipso vigora to the proceedings thereunder by reason of provision of section 141, C.P.C. For the Guardians and Wards Act as Court under Guardians and Wards Act means the District Court having jurisdiction to entertain the application under that Act.
This judgment does not apply to the present case where the suit is for recovery of maintenance allowance. AIR 1921 Patna 293 also does not apply to the present case where it is held that an order passed without any notice shall, therefore, be without jurisdiction amount to no order at all.
5. In fact the suit was filed by the minor soft for recovery of maintenance allowance against his father. Matter was between father and a son who was to be benefited by the maintenance allowance, decreed against the father. The learned Executing Court was first to observe procedure given under section 13(3) of Family Courts Act, 1964 and could summon the judgment-debtor to pay the maintenance allowance and if he had refused to pay the said amount as directed by the Court thereafter the Court had to proceed and adopt coercive measures. In the instant case no such procedure was observed by the Court who put the property directly to auction for the recovery of amount of Rs.24,000. Even in the application at later stage for cancellation of auction proceedings the judgment-debtor was directed by the Court to deposit Rs.50,000, which was accepted by the auction-purchaser Inam ul Haq, who filed a reply and did not disclose that he has entered into further transaction through sale-deed in favour of the present applicants. Even the present applicants were to remain vigilant as they were stepping into the shoes of the auction- purchaser who appeared in the Court, took money and went away. As his title was defective and the applicants stepped into his shoes, therefore, they cannot come forward and say that a right has been conferred to them by way of transfer of property through sale-deed. However, the sale- deed and the mutations are not cancelled. They are very much within their rights to move to the competent Court for return of money and cost against the auction-purchaser. But in the present suit they are not necessary parties as the matter pertains to the redressal of grievance of the decree-holder against the judgment-debtor. The decree stands satisfied and that was the object of the execution therefore, the judgments passed by the learned Courts below are not open to any interference by this Court. Moreover, the impugned orders passed by the learned Courts below are not challenged before any forum, therefore, those have become final and at such a belated stage they cannot be interfered. Instant writ petition is dismissed.