Lal Nawaz Khattak VS ADJ-West, ICT etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3913 of 2019 Lal Nawaz Khattak Versus Additional District Judge, Islamabad and others Date of Hearing: 22.02.2022 Petitioner by: Mr. Khalil-ur-Rehman Abbasi, Advocate, Respondent No.3 by: Syed Ammar Hussain, Advocate.

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petition Nos.3913/2019 and 2802/2021 since they arise from the same execution proceedings.

2.Through writ petition No.3913/2019, the petitioner, Lal Nawaz Khattak, assails the order dated 26.10.2019 passed by the learned Executing Court whereby his property had been attached in the execution of the ex-parte judgment and decree dated 05.01.2018 passed by the learned Judge Family Court, Islamabad. The said decree was passed against the petitioner’s son, Asad Nawaz.

3.Through writ petition No.2802/2021, the petitioner, Asad Nawaz, impugns the order dated 16.07.2021 passed by the learned Executing Court whereby National Database Registration Authority (“NADRA”) was directed to block his Computerized National Identity Card (“CNIC”) for two months.

4.In this judgment, the petitioner in writ petition No.3913/2019 shall be referred to as “petitioner No.1” whereas the petitioner in writ petition No.2802/2021 shall be referred to as “petitioner No.2.”

5.Petitioner No.2 and Mst. Ayesha Adil (hereinafter referred to as respondent) got married on 22.10.2008. The Nikahnama (Exh.P/9) was registered on 25.10.2008. As per the contents of the Nikahnama, the dower was Rs.500,000/-. The dower was deferred to be paid on demand. Out of the dower, gold jewelry of 35 tolas was given to the respondent and the rest was to be in the form of petitioner No.2’s Islamic share in House No.42, Street No.12, Sector K-3, Phase-III, Hayatabad, Peshawar. Petitioner No.2 had three brothers and one sister.

6.Petitioner No.2 and the respondent got divorced on 05.09.2012. On 30.09.2014, the respondent filed a suit for recovery of dower, maintenance and dowry articles against petitioner No.2 only. This suit was decreed ex-parte on 05.01.2018. The appeal filed against the said ex-parte judgment and decree was dismissed by the Court of the learned Additional District Judge, Islamabad. Writ petition No.3862/2018 filed by petitioner No.2 against the said concurrent judgments and decrees has also been dismissed by this Court.

7.Petitioner No.2 is living abroad and avoiding the execution proceedings instituted by the respondent. On 17.12.2018, the learned Executing Court issued an attachment order with respect to House No.946, Street No.41, Phase-III, Bahria Town, Islamabad which is owned by petitioner No.1. Petitioner No.1 is petitioner No.2’s father as well as his special attorney and is resisting the execution proceedings on behalf of petitioner No.2.

8.On 02.01.2019, petitioner No.1 filed an application for the setting-aside of the said attachment order dated 17.12.2018. Vide order dated 05.09.2019, the learned Executing Court dismissed the said application. The said order dated 05.09.2019 was assailed by petitioner No.1 in a revision petition before the Court of the learned Additional District Judge, Islamabad. Vide order dated 26.10.2019, the said revision petition was also dismissed. The said concurrent orders have been assailed by petitioner No.1 in writ petition No.3913/2019.

9.Vide order dated 16.07.2021, the learned Executing Court dismissed petitioner No.2’s application to pay the decreetal amount in installments and passed an order to block petitioner No.2’s CNIC so as to compel him to satisfy the judgment and decree against him.

10.Learned counsel for petitioner No.1 submitted that petitioner No.1 was not a party in the suit that culminated in the ex-parte judgment and decree dated 05.01.2018; that the said decree cannot be enforced against the assets of petitioner No.1; that although petitioner No.1 was the special attorney of petitioner No.2 against whom the decree was passed but at no material stage did petitioner No.1 stand as petitioner No.2’s surety; that petitioner No.1 never give an undertaking to the effect that he would satisfy the decree; and

that since petitioner No.1 was petitioner No.2’s father, the former was representing the latter before different Courts in Pakistan.

11.Learned counsel for petitioner No.2 submitted that an offer had been made to the respondent to agree on accepting the payment of the decreetal amount in installments of Rs.50,000/- per month; that petitioner No.2 is jobless and had also suffered from COVID-19; that the learned Executing Court could not have issued a direction to NADRA to block petitioner No.2’s CNIC; that NADRA was a statutory body and was not a party to the suit filed by the respondent; that the blocking of petitioner No.2’s CNIC would have the effect of depriving him from his identity; and that the order for the blocking of petitioner No.2’s CNIC was harsh and therefore liable to be set-aside. Learned counsel for petitioner No.2 prayed for the said writ petition to be allowed.

12.On the other hand, learned counsel for the respondent submitted that the petitioners are in congress with each other and are trying their level best to deny the respondent of the benefits under the judgment and decree dated 05.01.2018; that petitioner No.1 had been appearing before different Courts in Pakistan on behalf of petitioner No.2, who is abroad to hoodwink the process of the Court; that the continual resistance by the petitioners caused the learned Executing Court to attach petitioner No.1’s property in Islamabad and block petitioner No.2’s CNIC; that in the case of Muhammad Pervez Vs. Mst. Nabila Yasmeen (2004 SCMR 1352), the issuance of bailable warrants of arrest by the learned Executing Court against the general attorney of the judgment debtor had been upheld; and that in the said judgment, it was held that the judgment debtor was bound to satisfy the decree either himself or through the attorney, who had been representing him in the suit. Learned counsel for the respondent prayed for both the writ petitions to be dismissed.

13.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of these petitions have been set out in sufficient detail in paragraphs 2 to 9 above, and need not be recapitulated.

14.It is not disputed that at no material stage did petitioner No.1 stand as surety for his son, petitioner No.2 or give an undertaking to the learned Executing Court that he would satisfy the judgment and decree dated 05.01.2018 on behalf of his son. Petitioner No.1 is not a judgment debtor and was admittedly not a party to the suit instituted by the respondent. He had admittedly been resisting the execution proceedings filed by the respondent but in his capacity as a special attorney, he could not be made liable to satisfy the decree that had been passed against his son. Under Order XXI, Rule 13 C.P.C., only immovable property belonging to the judgment debtor could be attached. This being so, the learned Executing Court could not attach or sell petitioner No.1’s property in satisfaction of the judgment and decree dated 05.01.2018 which had been passed against petitioner No.2.

15.In the case of Muhammad Mohsin Fawad Vs. Hina Tayyaba Khalil (2018 YLR 2188), this Court allowed a revision petition against concurrent orders passed by the learned Executing Court and the Appellate Court whereby the immovable property of the brother of the judgment debtor had been attached. In the said report, the case of Muhammad Pervez Vs. Mst. Nabila Yasmeen (supra) was discussed and distinguished. Warrants of arrest in the said case had been issued because the attorney had breached his commitment before the Court that judgment debtor would be produced before the learned Executing Court.

16.Since petitioner No.1 is admittedly not a judgment debtor and had not stood surety for petitioner No.2, the immovable property owned by petitioner No.1 could not be attached. Consequently, writ petition No.3913/2019, is allowed and the concurrent orders dated 05.09.2018 passed by the learned Executing Court and 26.10.2019 passed by the learned Revisional Court are set-aside, with no order as to costs.

17.As regards writ petition No.2802/2021, petitioner No.2 has been abroad for a considerable period of time and has resisted tendering appearance before the learned Executing Court. In this way, he has till date been successful avoiding the process of the Court and delaying the execution of the judgment and decree dated 05.01.2018. This conduct of petitioner No.2 bespeaks of a sorry state

of affairs at his end and disentitles him from any indulgence by this Court in the discretionary / equitable jurisdiction under Article 199 of the Constitution. Although petitioner No.2’s CNIC has been blocked but he can travel to Pakistan by using his passport which has not been blocked as yet. Recently, this Court in the case of Hafiz Hamdullah Saboor Vs. Government of Pakistan (PLD 2021 Islamabad 305) has held inter alia that a CNIC can be blocked pursuant to an order by a competent Court. Since petitioner No.2 has been hoodwinking the process of the Court and thereby trying to defeat the timely execution of the judgment and decree dated 05.01.2018, I am not inclined to interfere with the order dated 16.07.2021 assailed in writ petition No.2802/2021, which is accordingly dismissed with costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 05.04.2022.

JUDGE

Sultan*