Shakila Bibi vs Adj etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

W.P No.14003 of 2024

Mst. Shakeela Bibi Versus Additional District Judge, Kabirwala & others

JUDGMENT

Date of hearing: 13.10.2026 Petitioner by: Mr. Abdul Qayyum Khan Zimri, Advocate. Respondent No.3 by: Mehr Muhammad Nawaz Naul, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant petition, the petitioner has called in question the order dated 31.05.2024 passed by the learned Judge Family Court/Executing Court, Kabirwala, and the judgment dated 16.09.2024 passed by the learned Additional District Judge, Multan, whereby the appeal preferred by the petitioner against the former order was dismissed.

2.The relevant facts, in brief, are that the petitioner and respondent No.3 were spouses and, during the pendency of their family proceedings concerning maintenance allowance and restitution of conjugal rights, entered into a compromise on 30.04.2019, which was reduced into writing as Exh.C-1. Their statements were recorded, and the proceedings were disposed of in terms of the compromise. Under its terms, respondent No.3 undertook to provide separate accommodation to the petitioner by constructing four walls within one and a half months, to pay Rs.30,000 towards delivery expenses and to provide one tola of gold ornaments towards dower by 25.06.2019. He further undertook to pay maintenance allowance at the rate of Rs.4,000 per month for each minor child regularly. The petitioner, in turn, undertook to abide by the terms of the compromise and resumed cohabitation with respondent No.3. Subsequently, the petitioner

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initiated execution proceedings on 19.11.2022, seeking enforcement of the obligations incorporated in the compromise decree. Respondent No.3 filed an objection petition, contending, inter alia, that the petitioner had continued to reside with him and had not sought enforcement within the stipulated period. He further relied upon the parties’ subsequent conduct and asserted that he had been regularly paying maintenance allowance for the minor children. The learned Judge Family Court, through order dated 31.05.2024, declined to enforce the obligations concerning separate accommodation, delivery expenses and gold ornaments, while directing respondent No.3 to pay the outstanding maintenance allowance and continue paying Rs.4,000 per month for each minor child in accordance with the decree. The petitioner challenged the aforesaid order before the learned Additional District Judge, Multan, contending that the executing Court had failed to give effect to the terms of the compromise decree and had declined enforcement on grounds insufficient in law. The learned appellate Court, through judgment dated 16.09.2024, dismissed the appeal, substantially agreeing with the findings of the executing Court. Hence, the instant constitutional petition.

3.Learned counsel for the petitioner contends that the learned Courts below failed to appreciate the true import of Exh.C-1 and the decree passed in terms thereof. He argues that the obligations expressly undertaken by respondent No.3 could not be treated as discharged merely because the petitioner had continued to reside with him or had approached the executing Court after some delay.

4.Conversely, learned counsel for respondent No.3 supports the impugned orders and maintains that the executing Court rightly declined enforcement in view of the parties’ conduct and the circumstances attending the execution proceedings.

5.Arguments heard. Available record perused.

6.The controversy requires examination in the light of the scope of constitutional jurisdiction, the nature and effect of the compromise decree dated 30.04.2019, and the limits of the executing Court’s

W.P No.14003 of 2024

authority. It is a settled principle that an executing Court is required to give effect to a decree according to its terms and cannot travel beyond, vary or substitute its own determination for the adjudication embodied therein. At the same time, it is competent to interpret the decree, where necessary, by referring to the judgment and the record, and to determine questions relating to its execution, discharge or satisfaction. In Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and others (PLD 2009 Supreme Court 760), the Hon’ble Supreme Court recognized that, although an executing Court cannot go behind the decree, it may examine whether the decree, or a severable part thereof, is executable in accordance with law. Similarly, in Muhammad Afzal v. Judge Family Court and others (2018 CLC 801), this Court emphasized that an executing Court must enforce a decree in its true perspective and cannot disregard a condition expressly forming part of the adjudication.

7.The constitutional jurisdiction of this Court is not intended to provide another forum for routine reappraisal of concurrent findings. Nevertheless, interference is warranted where the Courts below have failed to examine a material question of law, have misconstrued the terms of the decree, or have reached a conclusion without determining the legal effect of the relevant facts and circumstances. The impugned orders, therefore, require examination to determine whether the objection petition was adjudicated in accordance with the foregoing principles.

8.The record reflects that Exh.C-1 contains distinct undertakings concerning separate accommodation, delivery expenses, dower and maintenance allowance for the minor children. The obligation to provide separate accommodation was to be performed within one and a half months, whereas the payment of Rs.30,000 towards delivery expenses and provision of one tola of gold ornaments towards dower were stipulated for performance by 25.06.2019. In addition, respondent No.3 undertook to pay maintenance allowance at the rate of Rs.4,000 per month for each minor child regularly. These obligations, though

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incorporated in the same compromise, required examination according to their respective terms and the nature of the rights arising therefrom. The learned Judge Family Court declined to enforce the obligations concerning separate accommodation, delivery expenses and gold ornaments, principally on the grounds that the petitioner had continued to reside with respondent No.3, had not sought execution within the stipulated period, and had approached the executing Court after the parties separated. The learned Additional District Judge substantially endorsed this approach, relying upon the petitioner’s continued residence with respondent No.3 and the lapse of time.

9.The difficulty with this approach is that the continued residence of the petitioner in the house of respondent No.3, without more, does not establish that the obligations expressly recorded in Exh.C-1 were performed, discharged or relinquished. Nor does the subsequent resumption of cohabitation, by itself, establish that the petitioner abandoned her rights under the compromise. These circumstances may be relevant to the determination of the parties’ subsequent conduct, but their legal effect must be assessed in conjunction with the language of the compromise and the evidence relating to its implementation. In particular, it was necessary to determine whether separate accommodation had been provided in the manner contemplated by Exh.C-1, whether the stipulated payments and delivery of gold ornaments had been made, and whether any subsequent arrangement or conduct had legally altered or discharged the obligations incorporated in the decree. In the absence of such an examination, the conclusion that the petitioner was disentitled to seek enforcement cannot safely be sustained merely on the basis of continued cohabitation.

10.Equally, the question of reciprocal obligations required a more precise determination. The mere fact that several undertakings were incorporated in one compromise does not, by itself, establish that the performance of each obligation was conditional upon the performance of all the others. The executing Court was required to ascertain from the language and structure of Exh.C-1, read with the decree passed

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thereon, whether the provision for separate accommodation was expressly linked to any particular obligation of the petitioner and whether the obligations concerning delivery expenses and gold ornaments were independently enforceable or subject to an express reciprocal condition. The requirement that both parties abide by the compromise cannot, without further examination, be construed as making every obligation mutually dependent. Conversely, the executing Court could not introduce a condition that did not form part of the decree or disregard a condition expressly incorporated therein. The enforceability of each obligation had, therefore, to be determined from the terms of the compromise as accepted by the Court and embodied in the decree, rather than from a general assumption that the parties’ obligations were necessarily reciprocal. The appellate Court did not undertake this examination and instead affirmed the refusal to enforce the disputed obligations substantially on the basis of the parties’ subsequent conduct and the passage of time. This omission is material because the legal effect of each undertaking must be determined in accordance with the decree itself.

11.The objection relating to limitation also requires consideration. The compromise was recorded on 30.04.2019, whereas the execution petition was instituted on 19.11.2022. The obligations concerning separate accommodation, delivery expenses and dower were stipulated for performance within specified periods. However, the mere lapse of three years from the date of the decree or the stipulated dates of performance does not, by itself, furnish a sufficient ground to dismiss an execution petition arising out of proceedings under the West Pakistan Family Courts Act, 1964. Section 13 of the said Act provides for enforcement of Family Court decrees without prescribing a specific period of limitation for institution of execution proceedings. In Mirza Muhammad Akbar Baig v. Additional District Judge, etc. (2024 CLC 979), this Court held that Article 181 of the Limitation Act, 1908, could not be applied mechanically to execution of a Family Court decree. The Court observed that the provisions of the Limitation Act,

W.P No.14003 of 2024

1908 are not applicable to family matters in the strict sense and that no specific period of limitation could be fixed for execution of a decree for dower in the circumstances considered therein. The Hon’ble Supreme Court, in Syed Muhammad v. Mst. Zeenat and others (PLD 2001 Supreme Court 128), likewise recognized that enforcement of a decree for prompt dower could not be refused as time-barred merely because its execution had been postponed during the subsistence of the marriage.

12.The aforesaid authorities militate against treating the execution petition as barred merely because the stipulated dates of performance had passed. Nevertheless, the rule concerning dower must be applied in the context of the nature of that obligation, and its precise scope should not be extended indiscriminately to every undertaking incorporated in the compromise. The enforceability of the obligations concerning separate accommodation and delivery expenses must also be examined in accordance with the statutory scheme governing Family Court decrees and the legal character of the respective claims. The executing Court was, therefore, required to consider the objection of limitation in this legal perspective rather than rely solely upon the passage of time as a ground for declining enforcement.

13.The maintenance allowance stipulated for the minor children requires separate consideration. Exh.C-1 expressly records the undertaking of respondent No.3 to pay maintenance allowance at the rate of Rs.4,000 per month for each minor child regularly. The learned Courts below have recorded that the judgment-debtor had paid the outstanding maintenance allowance and also directed him to continue to make payment of future maintenance. However, the regular payment and the question of satisfaction of the decree are matters to be determined on the basis of the relevant record. Any amount already paid must be duly accounted for in determining the outstanding liability. The minors’ entitlement must be considered independently, according to the terms of the decree and the evidence of payments made. The executing Court was, therefore, required to determine the

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outstanding maintenance liability separately for each minor, while ensuring that no amount already paid was recovered twice.

14.In view of the foregoing discussion, the impugned orders do not reflect a complete determination of the material questions arising from Exh.C-1 and the decree passed thereon. The learned Judge Family Court was required to examine the precise terms of the compromise, determine the nature and enforceability of the respective obligations, assess the evidence concerning performance, satisfaction or any legally effective waiver, and consider the objection of limitation in accordance with the applicable law. The learned Additional District Judge, while exercising appellate jurisdiction, was correspondingly required to examine whether the conclusions reached by the executing Court were supported by the terms of the decree and the governing legal principles. The affirmance of the impugned order, substantially on the basis of continued cohabitation, delay and the asserted payment of maintenance allowance, without a sufficiently clear determination of these distinct questions, warrants interference in constitutional jurisdiction. Since the aforesaid matters require examination of the original compromise, the decree and the relevant record, it would not be appropriate for this Court to record a final conclusion regarding the enforceability of the individual obligations at this stage. The ends of justice would, therefore, be served by remitting the objection petition to the learned Judge Family Court for fresh adjudication in accordance with law.

15.Consequently, this constitutional petition is allowed. The impugned order dated 31.05.2024, passed by the learned Judge Family Court/Executing Court, Kabirwala, and the judgment dated 16.09.2024, passed by the learned Additional District Judge, Multan, are set aside. The objection petition filed by respondent No.3 is remanded to the learned Judge Family Court/Executing Court for fresh decision in accordance with law. The learned Court shall examine the precise terms of Exh.C-1 and the decree passed thereon; determine whether the obligations concerning separate accommodation, delivery expenses and gold ornaments are independently enforceable or subject to any express

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reciprocal condition; assess the evidence concerning performance, satisfaction or any legally effective waiver; and consider the objection of limitation in the light of the applicable law and the principles discussed above. The claim concerning maintenance allowance of the minors shall be considered separately, keeping in view their independent legal entitlement, the terms of the subsisting decree and any payments duly established on the record. Both parties shall be afforded an adequate opportunity of hearing, and a reasoned order shall be passed, preferably within sixty days of receipt of a certified copy of this judgment. It is clarified that this Court has expressed no final opinion on the merits of the objection petition or the ultimate enforceability of any particular term of the compromise decree. The learned Judge Family Court shall decide the matter independently, uninfluenced by any observation herein, except for the legal principles and directions expressly stated above.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*