with IR Mst. Taqiya Begum Vs Intikhab & others

t't- @

JI]DGMENT SHEET

IN THE PESHAWARHIGH COURT,

PESHAWAR.

@,Aiciat OEartment)

Writ Peti tion No.1059-P12025 with IR

Mst. Taqiya Begum VS. Intikhab & others

For petitioner: IWS Tajdar Faisal Khan Marwat & Asad Zeb Advocatds

For Respondents: IVIr. Safeer Qaiser Malik Advocate.

Date of hearing 07.03.2025

JUDGMBNT

Dr. Khurshid lqbal, J.-

1.By this judgment, we propose to dispose of the subject writ petition and the connected one bearing No. L307-P12025-Waqar Khan Vs. Mst. Taqiya Begum- filed under Article 199 of the Constitution, as facts.and the issue involved in both the petitions, are common.

2.The petitioner, Mst. Taqiya Begum, challenged the order dated 14.02.2025 passed by the learned Judge Family Court (JFC), Swabi. By means ofthe said order, the learned Court, on an application of Waqar Khan, directed the bailiff of the court and the SHO concerned, not to interfere with the house, the ownership and possession of which was sought in execution proceedings of an ex-parte decree passed by the JFC in Peshawar.

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3.The respondent Waqar Khan, on the other hand, assailed the orders dated 19.12.2024 and 30.01.2025 by which the learned executing court in Peshawar sought details of the decreed house in Swabi and issued its possession waffant.

4.Brief facts ofthe case are thataJFC in Peshawar, has passed an ex-parte decree in favour of the petitioner for recovery of dower, in shape of 20 toals gold ornaments, a 10 marlahouse, maintenance allowance and dowry articles.

Presently, the proceedings for execution of the decree are pending ,before the court in Peshawar. The petitioner submitted in the executing court in Peshawar the information that the house is situated in village Torlandi, swabi. The executing court issued warrant of possession of the house, The respondent filed an objection petition against the order of possession, in the Court of JFC Swabi, who suspended the order of the Court in Peshawar i. We heard learned counsel ofthe parties at length and perused the record made available to us.

6.So: far as the issuance of warrant for delivery of possession of the house sitgated in village Torlandi, Swabi, is concemed, ttre leamed JFC Peshawar has no territorial jurisdiction in the matter. Though the leamed JFC in Peshawar is seized of the matter pertaining to the execution of the ex- parte decree passed by her. However, the house in question is situated in Torlandi, village of Swabi District. Under the lawi the leamed executing court in Peshawar was required to have either attached the house by means of issuance of precept or ffansferred the decree to the court in Swabi under Sections 39 and 46 of the Code of Civil Procedure (CPC).

7.While on the other hand, the decree of the petitioner to the extent of decretal house was about to satisfy, learned IFC Swabi (respondent No.3) vide his impugned order dated 14.02.2025 restrained the Bailiff as well as the SHO concerned from further proceedings, which is not sustainable in the eye of law. The reason is that he has no power to suspend a warrant of possession issued by a court of the same jurisdiction in Peshawar. Needless to mention, the decree has been passed by the JFC, Peshawar, and execution proceedings are also pending before the said court. It follow that both the courts have erred, while passing the impugned orders. It needs no emphasis that the decreed house is situated in District Swabi, the proper course is'to transfer the decree to that extent to the court in Sawabi.

8.The issue of transfer of a family court decree in execution proceedings has been settled. The latest view is of this court in Mst. Zaibiv. Zahid AIi and other OLD 2024 Pes hawar l97l in which the decree passed by a JFC in Nowshera was ordered to be transferred to Charsadda where the judgment debtor was residing. The Court underlined that the West Pakistan Family Court Rules, 1965, ate silent on the issue. However, there ate numerous judicial opinions that keeping in view the nature of jurisdiction conferred under the West Pakistan Family Courts Act, lg64,a JFC may take recourse to the provisions of the Civil Procedure Code, 1908 (CPC). A recent Supreme,Court ruling is Muhommnd Arshad Anumv. Mst. Khurshid Begum and other (2021 SCMR 114$. The hon'ble Court held that though the provisions of the CPC except section 10 and 11 and of the Qanun-e-Shahadat Order, 1984 are excluded from proceedings before family

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court for expeditious settlement and disposal of disputes, but such court doesn't lose its staflts as a court' nor does it take away its inherent jurisdiction to protect orders and decrees. In "Haji Muhammnd Nawaz vs. samina Kanwal and others" @ the august Court has ruled: ,,Family Court, whether as a trial court ir an executing court, are govemed by the general principles of equity, justice and fair play." Reference may also be made to '6Muhammad Tabish Naeem Khan Vs. Additional District Judge, Lahore and others" @, in which it opined that a family court "can draw and follow its own procedure provided such procedure should not be. against the principles of fair hearing and trial [.. .]." lnMsL Amman Gul v. Judge Famity Coutt Rawalpindi and others,2023 CLC 1300, the Court has held that a family court may transfer execution proceedings under section 39 ofthe CPC.

Iirelevant para read:

g. We are mindful of the fact that

Section t3 of the "Act, 1964" neither provides detailed mechanism for the executton of decree nor caters all the eventualities arising fro* the

execution proceedings. Sub-section (4)

of Section l 3 of "Act, 1964" Places the Family Court and the Civil Court at the same pedestal for the purpose of execution of decree, so in that capacity o court "Family" or "Ctvil" enioYs all powers of the executing court vested in Part II as well as Order ruI of the "C.P.C.". Section 39 of the "C.P.C."

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deals with the transfer of decree which

empowers the court who Passed a decree to send rt for execution to another court, onthe application ofthe decree holder. We deem it appropriate

to reiterate that once a decree ls passed by the Family Court that becomes executable in terms of Sectton

I3 and in case of any hindrance to the same, the learned executing court can

adopt any of the mode providedfor the execution ofthe decree tn the "C.P.C.".

10.For reasons recorded above and the legal principle relied upon, we allow both these petitions and set aside the impugned orders of both the courts. The learned JFC/executing in Peshawar shall, on application of the petitioner/decree holder, transfer the decree regarding l0 marlahouse in lieu of dower, to Sawabi. We also directthe JFC in Sawabi to club the execution proceedings with the objection petition filed by the respondent and decide them according to law.

(*tul/Subhan)

JUDGE

(D.BI

Hon'ble Mr. Justice Syed Arshod Ali & Hon'ble Mr. fu$ice Dr. Khutshid lobal