This Constitutional petition is directed against the order, dated 8-7-2003 passed by a learned Civil Judge, 1st Class, Sheikhupura/Executing Court, directing the petitioner/judgment-debtor to deposit the amount of Rs,1,40,000, determined as price of the dowry articles.
2. Mst.Shahida Parveen, respondent No,1 was married to Muhammad Akram, petitioner on 26-6- 1988. Respondent No,1 filed a suit for recovery of dowry articles which was decreed ex parte on 1-12- 1997. The order was not challenged any further, consequently the same assumed finality. During the execution proceedings, Local Commission was appointed to ascertain whether the dowry articles were available. A comprehensive report was filed by the Local Commission on 16-4-2003, which showed that restitution of most of the dowry articles was not possible. It was in these circumstances, that the learned Executing Court by the impugned order, dated 8-7-2003, directed that the amount of Rs,1,40,000 being value of dowry articles, should be recovered from the petitioner.
3. Learned counsel for the petitioner contended that since the learned Family Court, which passed the decree, had not awarded, in the alternative, the cost of the dowry articles the Executing Court could not go behind the decree and, therefore, the petitioner could not be compelled to pay Rs,1,40,000 towards price of the dowry articles. His precise argument is that since in the decree of the learned Family Court, there is no mention of the money payable by the judgment-debtor, in the alternative, the impugned order of the learned Executing Court for payment of Rs,1,40,000 is without jurisdiction.
4. The argument is destitute of any valid foundation. A perusal) of the judgment, dated 1-12-1997 shows that the petitioner had filed his written statement to contest the suit by saying that no dowry articles were given to respondent No,1 at the time of marriage. The petitioner was, however, proceeded against ex parte on 24-6-1996. Doubtless, in the ex parte judgment, dated 1-12-1997 all that is stated is: "Accordingly, this suit is ex parte decreed as prayed for". The words "as prayed for" are important and have to be read in conjunction with the prayer clause of the plaint wherein while seeking decree for recovery of dowry articles, it was further prayed for recovery of Rs,1,40,000 in the alternative, as price thereof. Thus, on the factual plane, the contention of the learned counsel for the petitioner has no legs to stand upon, there being a specific prayer for recovery of value of the dowry articles, in the alternative.
5. So far as the contention of the learned counsel for the petitioner that the learned. Executing Court while executing the decree for recovery of dowry articles could not order recovery of the amount of Rs,1,40,000 which had been awarded in the alternative, as price of the dowry articles, in particular when the petitioner was ready to part with the dowry articles, is concerned, he placed reliance on Venkatrao v.Mallapar (AIR 1959 Mysore 164). In the cited case, the terms of the decree were as follows:-- "The plaintiff is entitled to get two Ras bullocks or their price HS Rs,800-" The decree holder took out execution and sought realization of the decretal amount by attachment and sale of the movable and immovable property of the judgment-debtor. The judgment-debtor objected to the manner in which execution of the decree was sought on the ground that he was willing to deliver possession of the bullocks to the decree-holder. From the judgment it appears that the judgment-debtor had actually brought two bullocks in the Court but the decree-holder refused to take their delivery. The Executing Court directed that the decree- holder must accept the bullocks and dismissed the execution petition in full satisfaction. The decree-holder appealed against the decision of the Executing Court. The First Appellate Court reversed the decision of the learned Executing Court and held that the decree gave an option to the decree-holder, either to get back the bullocks or their price and that the decree-holder was not bound to take back the bullocks. The judgment-debtor approached the High Court in second appeal, which was allowed by observing that "giving of an alternate remedy does not, however, give the decree-holder any option of refusing to take the B delivery of the property and of insisting upon the money portion of the decree".
6. There can be no cavil with the proposition that in a suit for restitution of specific dowry articles, ordinarily it is the option of the defendant-husband whether he would deliver the articles or pay the value thereof. In the instant case, Local Commission was appointed to ascertain the existence or otherwise of the dowry articles as per list 'Exh.P/1, as well as those articles which were (1) missing,
(2) not recoverable, and (3) damaged. The learned Local Commission prepared such-like lists in the presence of the parties. The lists contain signatures of the petitioner and respondent No,1. Out of total sixty-eight items of dowry articles, seventeen were "missing", fourteen items were not "recoverable" either having been used or destroyed, and ten items were reported to be "damaged".
Some of the items did not allegedly belong to respondent No,1 it will thus appear that the petitioner was not in a position to restore all the dowry articles belonging to respondent No,1.
7. Moreover, a perusal of the judgment, dated 1-12-1997 shows that in his written statement the petitioner had definitely pleaded that no dowry articles were given to the plaintiff-respondent No,1 at the time of her marriage. He had thus deliberately made a false averment. The parties were married way back in 1988. The petitioner divorced respondent No,1 which became effective on 29- 6-1991. The dowryarticles of respondent No,1 have thus remained in possession and use of the petitioner for about 12 years. No doubt, the petitioner had produced some articles before the Local Commission, and now offers delivery thereof but, as could be expected, there was no acceptance of them on the side of the plaintiff-respondent No,1, on the ground that they were not the articles under claim. In other words, the same did not belong to her. Obviously, it would be quite wrong, after the defendant-petitioner had adopted such a clear attitude in his written statement, to give him a chance now, after more than a decade, of giving delivery. Such an opportunity even during execution proceedings was bound to open up a wide field of controversy on the question of identification, deterioration etc., of the dowry articles. Since he had pleaded in the written statement that respondent No,1 had not been given any dowry articles at the time of marriage, it can legitimately be assumed that the petitioner had no intention to part with any article of dowry belonging to respondent No, 1.For that reason also, the dowry articles might have been used mercilessly, with the result that the same were either not available at all, and those which were available were in a damaged condition. I, therefore, think the learned Judge was right, in view of the circumstances to which I have referred above, in directing the petitioner to make payment of the amount of Rs,1,40,000 towards cost/value of the dowry articles.
8. Learned counsel for the petitioner then relied on Order XX, rule 10 C.P.0 to submit that since the petitioner has offered to return the dowry articles, the alternate prayer could not be allowed. Rule 10 ibid reads as follows:- "Decree for delivery of movable property.--Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had." The precise contention of the learned counsel for the petitioner is that when a decree is passed in terms of Order XX, rule 10, C.P.0 for restitution of movabte property, the option is with the defendant as to whether he would deliver the movable property concerned or pay the assessed value on the same. Learned counsel for the petitioner, in support of his submission, relied firstly, on Haribara Iyar v. Narayanan Elayathe (26 TLJ 1301), which was a case of decree for arrears of rent payable in paddy, and not for delivery of specific movables. Therefore, the reliance on the cited case is inapt.
The next case relied upon by the learned counsel for the petitioner is Shivaprasad v. Prayagkumari (AIR 1935 Calcutta 39) wherein it was observed that a decree-holder cannot execute the decree without having recourse to the procedure prescribed by Order XXI, rule 31, C.P.C. And that he has not an option not to take delivery of the property and to fall back upon the money portion of the decree. In fact, the said case was not one of execution of the decree. The observations were made in an appeal from the original decree. What rule 10 ibid itself states is that the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had. Rule 31 of Order XXI, C.P.0 prescribes how a decree for any specific movable property may be executed and in my opinion to hold that it is for the judgment-debtor to determine the manner in which the alternative judgment of the property or its value is to take effect would be to render the provisions of rule 31 nugatory or even otiose. In Shivaprasad v. Parayagkumari (AIR 1935 Calcutta 39), relied upon by the learned counsel for the petitioner, himself, reference was made to the decision reported as Kashee Nath v. Deb Kristo Ramnay Doss (16 WR 240) wherein it had been observed that the words of rule 10 of Order XX, C.P.C. Are in strict accordance with the provisions of the English Law that a certain amount of money should be allowed as an alternative if delivery of the chattel in dispute cannot be had; if the goods are capable of delivery, they must be delivered, if they are not capable of delivery then assessed damages should be paid. This judgment lends support to my view that the question of the enforcement and payment of the money as part of the decree in the instant case has arisen since the movables concerned/dowry articles have been found to be not capable of delivery.
9. Moreover, in view of the provisions of section 17 of the Family Court Act, 1964, the provisions of Order XX, rule 10, C.P.C. Stricto senso do not apply to proceedings in the Family Court. Secondly, rule 10 ibid does not say that a person who is entitled to delivery of specified movables must, in all cases sue for such delivery and not for their value or for damages for, in many cases the movables themselves would be of no use to him after conversion or detention, as is the case here. Nor does I the rule say that the Court must invariably decree the articles claimed and not their value only. It would be something very strange to hold that even in a case where the defendant asserts that the articles are not in his possession or not in existence, the Court should still be bound to pass a decree for the articles in the first instance and, in the alternative, only for their value. Be that as it may, the ex parte judgment, dated 1-12-1997 J having not been challenged in appropriate proceedings, the same had attained finality.
10. The contention of the learned counsel for the petitioner that the Local Commission who had been appointed was the counsel for the respondent appears to be an afterthought because no such objection was taken at the time when the appointment was made. Even at the time of inspection of the dowry articles, the petitioner did not take any such objection. He is a signatory to the three lists of dowry articles attached with the report of Local Commission. The exercise undertaken by the learned Executing Court appears to be for the satisfaction of the petitioner otherwise once the petitioner denied being in possession of any dowry articles of respondent No,1, there was no need for appointment of any Commission. The learned Executing Court should have straightaway executed the decree for money.
11. For the foregoing reasons, I find no substance in this petition which is dismissed in limine.