2011 C L C 1 0 4 0

[Lahore]

Before Ijaz Ahmed, J

Mst. REHANA REHMAN----Petitioner

Versus

FAMILY JUDGE and Others----Respondents

Writ Petitions Nos.5029 and 3946 of 2010, decided on 2nd March, 2011.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Pensions Act (XXIII of 1871), S.11---Civil Procedure Code (V of 1908),
S.60(j)(g) & [Link]---Pakistan Army Act (XXXIX of 1952), 5.171---Constitution of Pakistan,
Art.199---Constitutional petition---Suit for dowry articles and maintenance by wife and minors--
-Trial Court decreed the suit ex parte---Application for setting aside the ex parte decree was
dismissed---Pension of defendant was attached due to discontinuance of payment of
maintenance---Additional District Judge dismissed defendant's appeal---Trial Court recalled
order of attachment of pension in that connection---Plaintiff contended that the Trial Court could
not recall its order in view of dismissal of appeal against that order and pendency of the
constitutional petition regarding the same matter before the High Court---Defendant contended
that his pension could not be attached for execution of decree---Validity---Defendant having
challenged the judgment and decree of the Appellate Court through constitutional petition, had
no locus standi to submit applications before the executing court---Defendant having succeeded
in obtaining the order of recalling the attachment of pension by concealing the pendency of the
constitutional petition, could not be allowed to avail two remedies simultaneously---Remedy by
way of filing a review petition was the creation of statute and the same did not vest in a court
unless provided by law---Order of Trial Court recalling attachment was passed without
jurisdiction---Legislature provided for various modes of execution of decree and allowed
attachment of lands, houses, goods, money, bank-notes, cheques, bonds, sureties etc. but
exemption was granted to certain belongings, necessary tools, dwelling houses including the
stipends, gratuity and pension etc. from attachment under S.60(j)(g), C.P.C., S.171 of the
Pakistan Army Act, 1952 and the Pensions Act, 1871---Decree-holder had a right to have the
decree executed but the judgment-debtor had a right to save his pension from attachment etc. for
satisfaction of any decree or order passed by any court---Constitutional petition of defendant was
accepted to the extent of setting aside the order of attachment of pension--Executing Court was
at liberty to adopt the measures permissible under the law and satisfy the decree according to the
provisions of S.60 and [Link], C.P.C.

2008 PCr. LJ 782 ref.

Syed Zulfiqar Abbas Naqvi for Petitioner (in Writ Petition No.5029 of 2010 and for Respondent
No.1 in Writ Petition No.3946 of 2010).

Mehmood Azam Awan and Sardar Muhammad Ishaque for Respondent No.2 (in Writ Petition
No.5029 of 2010 and for Petitioner in Writ Petition'No.3946 of 2010).

ORDER

IJAZ AHMED, J.--- This order will dispose of the instant Writ Petition and Writ Petition
No.3946 of 2010 as both arise out of the same suit between the parties.

2. The petitioner/wife and two minor children instituted a suit for payment of dower and for the
return of dowry articles in favour of plaintiff No.1, the petitioner and for maintenance in favour
of all the plaintiffs. The suit was decreed with all the prayers made in the plaint vide ex parte
decree dated 22-12-2009. Application for setting aside ex parte decree was made, statement of
learned counsel for the applicant was recorded on 5-6-2010. She admitted the decree. The
application was dismissed vide order dated 5-7-2010. An application for execution of decree was
submitted. It was calculated at Rs.7 Million as arrears of the maintenance the amount of dower
and the value, of dowry articles. Out of it Rs.100,000/- was paid. The payment was however later
on discontinued. Vide Robkar dated 26-7-2010, the pension of the respondent No.2 was attached.
The respondent preferred an appeal against the orders dated 5-6-2010, 5-7-2010, 20-7-2010 and
26-7-2010. The same was dismissed by the learned Addl: District Judge, vide order dated 9-8-
2010. The respondent filed Writ Petition No. 3946 of 2010 praying for setting aside the order
dated 9-8-2010 and for setting aside the warrants of attachment issued in the aid of the execution
of the decree, which is going to be decided through this composite judgment. The respondent
filed yet another application before the learned trial Court for setting aside ex parte decree,
recalling of the order attaching the pension and for cancellation of warrants of arrest. The Court
being cognizant of the earlier proceedings and the pendency of the Writ Petition No.3946 of
2010 refused to set aside the ex parte decree, however recalled its earlier, order dated 5-7-2010
and ordered the release of the pension of the respondent vide order dated 6-11-2010. A show-
cause notice was issued to the respondent-judgment-debtor why his immovable property be not
sold. This order is impugned in W. [Link].5029 of 2010.

3. It is contended by the learned counsel for the petitioner that the learned executing court could
not recall/review its earlier order dated 26-7-2010, as the review is not a vested right of a party
and is a creation of statute and Family Courts Act 1964 does not provide this remedy; that since
the appeal preferred against the same order had been dismissed by the learned Addl: District
Judge, Rawalpindi, vide order dated 9-8-2010 and the matter was sub judice before this Court in
Writ Petition No.3946 of 2010, therefore, the executing court could not pass the impugned order;
that the pension of an officer is not exempted from attachment in execution of decree passed by a
Family Court and that the respondent after having made a statement dated 5-6-2010 and having
made payment of Rs.1,00,000 has admitted the ex parte decree, therefore he could no more
'impugn it; and the petitioner and co-plaintiff minors are at the verge of destitution.

4. On the other hand, it is contended by the learned counsel for the respondent that decree against
the respondent has been passed on his back and fraud has been committed by the petitioner; that
the pension of the respondent could not be attached for the execution of the decree under section
60(g)(j) of the C.P.C. read with section 11 of the Pensions Act, 1871 and section 171 of the
Pakistan Army Act, 1952. It is further argued that if an order is ab initio void the same could be
recalled. Reliance is placed on 2008 [Link] 782.

5. I have heard the learned counsel for the parties and have also gone through the record.
6. The order dated 5-6-2010 passed by the Duty Judge adjourning the application submitted by
the respondent-judgment-debtor, the order dated 5-7-2010 dismissing the application for setting
aside the ex parte decree and the order dated 26-7-2010 passed by the learned Judge Family
Court issuing non-bailable warrants of arrest and attaching the pension of the respondent-
judgment-debtor were challenged by respondent No.2 through an appeal preferred before the
District Judge, Rawalpindi. This appeal was dismissed for having been preferred after the
elapsed of period of limitation by the learned Additional District Judge, Rawalpindi, vide
judgment and decree dated 9-8-2010. Through Writ Petition No.3946 of 2010, the respondent-
judgment-debtor had challenged the judgment and decree passed by the learned appellate Court
and had generally prayed for setting aside of the acts in aid of the ex parte decree. Now he had
no locus standi and no occasion to submit another package of applications before the executing
Court praying for setting aside order the ex parte decree, re-calling of order attaching pension
and for cancellation of the non-bailable warrants of arrest. The Writ Petition No.3946 of 2010
was submitted on 16-9-2010 but no mention of pendency of this Petition was made in those
applications. The respondent-judgment-debtor, in this manner succeeded in obtaining the order
dated 6-11-2010, which in fact amounts to review. Since the respondent-judgment-debtor had
challenged the order dated 9-8-2010, passed in appeal by the learned' Additional District Judge,
Rawalpindi, he should have waited for its adjudication. He cannot be allowed to simultaneously
avail two remedies one before the High Court and other before the executing Court. The
executing Court could not pass the impugned order reviewing its earlier order dated 26-7-2010.
Even if the earlier order be void altogether, the law provides a course for rectifying the wrong.
The remedy by way of filing a review petition is the creation of statute, it does not vest in a
Court unless provided by law. The order' dated 6-11-2010, having been passed without
jurisdiction, is set aside. Writ Petition No.5029 of 2010 succeeds.

7. In Writ Petition No.3946 of 2010, the judgment-debtor has impugned the orders dated 5-6-
2010 passed by the Duty Judge who had recorded the statement of the learned counsel for the
judgment-debtor and adjourned the case for hearing to 5-7-2010, and the order dated 9-8-2010,
passed by the learned appellate Court dismissing his appeal and has prayed for setting aside of all
the acts in aid of the execution of the ex parte decree.

8. It is contended by the learned counsel for the petitioner that the ex parte decree is a shum in
law as no service had been effected on the judgment-debtor; that the learned counsel for the
judgment-debtor did not have her statement recorded before the Duty Judge, her signatures were
obtained on a blank paper and her statement was inserted later on; that the learned appellate
Court erred in law while dismissing the appeal as the judgment-debtor had alleged fraud in his
application for setting aside, the ex parte decree and both the learned Courts below have
contributed to it by not setting the impugned decree at naught obtained by fraud committed by
the decree-holder.
9. The statement of the judgment-debtor was recorded by the Duty Judge on 5-6-2010 and the
case was adjourned by him. The argument of the learned counsel for the judgment-debtor that
signatures of his counsel were obtained on a blank paper cannot be given undue weight. A
counsel who practises in law cannot claim the bonus of his mistake of signing a blank paper.
Moreover, a presumption of truth is always attached to the judicial record. This argument is
repelled. Resultantly, it is held that the order dated 5-7-2010 based on the statement made on 5-
6-2010 suffers from no illegality. Moreover, the order dated 5-7-2010, was challenged before the
learned appellate Court after the elapse of the period of limitation. The appeal to the extent of
orders dated 5-6-2010 & 5-7-2010 has rightly been dismissed. Therefore, the prayer to the extent
of expunging the proceedings dated 5-6-2010, and setting aside the order dated 5-7-2010, is
declined. To that extent this petition is dismissed.

10. The question that is yet to be resolved is whether the pension of any person subject to the
Pakistan Army Act, 1952 in view of ' section 171 of the said Act, section 11 of the Pensions Act,
1871 and section 60(g)(j) of C.P.C. could be attached in satisfaction of any decree or order
passed by a Court or not. Although, I have held while deciding Writ Petition No.5029 of 2010
that the order dated 6-11-2010, passed by the learned executing Court amounts to reviewing his
earlier order dated 26-7-2010, and therefore is not sustainable in law and same has been set
aside, but now myself seized with the same proposition I have to resolve the matter
independently. The ex parte decree passed in favour of the decree holder' holds the field and has
to be executed. The legislature provided the different modes for execution of a decree and also
allowed the attachment of lands houses, goods, money, bank notes, cheques, bills of exchange,
bonds, sureties, debts and shares etc. for the satisfaction of the decree but it also granted
exemption to certain belongings, necessary tools, the dwelling houses including the stipends,
gratuity and pensions etc. under section 60(j)(g) of C.P.C., section 171 of the Pakistan Army Act,
1952 and the Pensions Act, 1871 from being attached and cast away for satisfaction of decree.
The decree holder has a right to have its decree executed but the judgment-debtor has a right to
save, his pension from attachment etc. for satisfaction of any decree or order passed by any
Court, because that is his repose and retreat. The Writ Petition No.3946 of 2010 is accepted to
the extent of that part of the order dated 26-7-2010 that attaches the pension of the judgment-
debtor. The executing Court is at liberty to adopt the measures permissible under law and satisfy
the decree according to the provisions of section 60 and Order XXI of C.P.C.

A.R.K./R-12/L Order Accordingly.