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Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Transfer Application No. 71691of 2021
Sawera Ikram Versus Amir Naveed
S. No. of order/ Date of order/ Order with signature of Judge, and that
Proceeding Proceeding of parties or counsel, where necessary
18.11.2021 Mr. Moazzam Saleem, Advocate for the petitioner
Mr. Muhammad Mahmood Chaudhry, Advocate as
amicus curiae
This order will dispose of the captioned transfer
application as well as following transfer applications seeking
transfer of execution petitions:-
1. T.A.No.68040 of 2021 titled Mst. Saba Nasir v.
Muhammad Uzman
2. T.A.No.68728 of 2021 titled Muafia v. Zahid
Mehmood, etc.
3. T.A.No. 68832 of 2021 titled Sumera Ameen,
etc. v. Faryad Ali
4. T.A.No.69289 of 2021 titled Iram Farhan etc. v.
Raja Farhan Mehmood
5. T.A.No.68970 of 2021 titled Mst. Rehana
Kausar v. Mudasir Hussain
6. T.A.No.68740 of 2021 titled Iram Shehzadi v.
Shabbih Haider
7. T.A.No.67912 of 2021 titled Syeda Umm-e-
Laila, etc. v. Syed Qamar Abbas Shah, etc.
8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v.
M. Rashid
9. T.A.No.70294 of 2021 titled Khalida Parveen
v. Adnan Bilal Sial
10.T.A.No.67734 of 2021 title Mst. Maryum
Yousaf v. Qaiser Mehmood
11.T.A.No.59167 of 2021 titled Mst. Fozia Amjad
v. Amjad Farooq
12.T.A.No.69553 of 2021 titled Mst. Nadaas Bibi,
etc. v. Ghulam Rasool
13.T.A.No.56094 of 2021 titled Nusrat Bibi v.
Yasir Mehmood
14.T.A.No.69898 of 2021 titled Mst. Tayyaba
Nafees, etc. v. Tayyab Ali
T.A.No.71691 of 2021 2
15.T.A.No.67606 of 2021 titled Pro. Dr. Umbreen
Javed v. Noshad Mahmood
16.T.A.No.65187 of 2021 titled Ayesha Bibi, etc.
v. Ajmal Shahzad, etc.
17.T.A.No.61499 of 2021 titled Azra Parveen v.
M. Shafique
18.T.A.No.59746 of 2021 titled Naveera Irshad v.
M. Abdullah
19.T.A.No.59362 of 2021 titled Mst. Noor Jahan
v. Saif Ullah
20.T.A.No.57711 of 2021 titled Asma Liaqat, etc.
v. Mubashir Raheel Riaz
21.T.A.No.55971 of 2021 titled Asma Yaqoob v.
Jamshed Ali
22.T.A.No.57230 of 2021 titled Fouzia Yasmeen,
etc. v. Khalid Mahmood
23.T.A.No.68994 of 2021 titled Syeda Ayesha
Shakeel v. Syed Kamran Khalid
24.T.A.No.58421 of 2021 titled Mst. Anam Bibi,
etc. v. Muhammad Waqas Adil
25.T.A.No.65274 of 2021 titled Khalida Usman v.
Muhammad Shahzad
26.T.A.No.68227 of 2021 titled Mst. Rehmat Bibi,
etc. v. Muhammad Arshad Zaman
27.T.A.No.69863 of 2021 titled Tayyaba Manzoor
v. Nasir Ali
28.T.A.No.69908 of 2021 titled Mehvish Bibi v.
Atta Ullah
29.T.A.No.42451 of 2021 titled Mst. Shamim
Akhtar v. Muhammad Suleman
30.T.A.No.61325 of 2021 titled Tayaba Afzal v.
Farrukh Yasin
31.T.A.No.69429 of 2021 titled Mugheesa Munir
v. Muhammad Rizwan
32.T.A.No.65380 of 2021 titled Sumaira Arif v.
Shahbaz Ali
33.T.A.No.59839 of 2021 titled Shumyla Mansha
v. Khurram Shahzad
34.T.A.No.67789 of 2021 titled Mst. Samina Bibi
v. Muhammad Bukhsh
35.T.A.No.69567 of 2021 titled Nazish Nazir v.
Muhammad Bilal, etc.
36.T.A.No.55531 of 2021 titled Pathani Bibi v.
Muhammad Ikram
37.T.A.No.67640 of 2021 titled Iqra v.
Muhammad Nadeem
38.T.A.No.54307 of 2021 titled Amna Yasin, etc.
v. Muhammad Kalim
39.T.A.No.60947 of 2021 titled Amna Nasir, etc.
v. Muhammad Usman Baig
T.A.No.71691 of 2021 3
40.T.A.No.69005 of 2021 titled Afshan Rani, etc.
v. Khurram Shahzad
41.T.A.No.69829 of 2021 titled Mst. Muqadas
Bibi v. Asad Iqbal
42.T.A.No.59170 of 2021 titled Mst. Shazia
Parveen v. M. Younas
43.T.A.No.70461 of 2021 titled Mst. Rukhsana
Aslam, etc. v. Khalid Mehmood
44.T.A.No.65771 of 2021 titled Mst. Ruqia Naz,
etc. v. Shakeel Ahmad
45.T.A.No.71406 of 2021 titled Sumera Bibi, etc.
v. Muhammad Saleem
46.T.A.No.70924 of 2021 titled Mst. Nirma Khalid
v. Muhammad Amir Shahzad
47.T.A.No.71438 of 2021 titled Naeema, etc. v.
Javaid Iqbal
48.T.A.No.71416 of 2021 titled Khalida Parveen
etc. v. Muhammad Arshad
49.T.A.No.66214 of 2021 titled Kaneez Fatima v.
Iftikhar Ahmad
50.T.A.No.64567 of 2021 titled Shafqat Parveen,
etc. v. Amjad Hussain
2. Heard.
3. Preamble of the Family Courts Act, 1964
elaborates the purpose of promulgation of the enactment, which
reads:-
„Whereas it is expedient to make provision, for the
establishment of Family Courts for the expeditious
settlement and disposal of disputes relating to
marriage and family affairs and for matters
connected therewith.‟
Meaning thereby the Family Courts, 1964 is a special statute
and has been enacted with a specific purpose to precede
expeditious settlement and disposal of disputes relating to
marriage and family affairs and also matters connected
therewith. Furthermore, the purpose of enacting special law
regarding family disputes is advancement of justice and to
avoid technicalities which are hindrance in the ultimate justice
between the parties. Family Court has to proceed on the
premises that every procedure is permissible unless a clear
T.A.No.71691 of 2021 4
prohibition is found in law. The Court can exercise its own
powers to prevent the course of justice being refracted from the
path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst.
Sayeda Sabahat Batool and others (PLJ 2010 SC 891). The
main object of this enactment is for protection and convenience
of the weaker and vulnerable segments of the society i.e.
women and children; it is due to this reason that “Nikah” is to
be registered where the bride is living; if bridegroom fails to
pay maintenance, application for securing maintenance is
competent before Union Council where the bride resides and in
case permission is required to be sought by the bridegroom for
contracting second marriage, application has to be submitted to
the Chairman Union Council where the wife resides; same like
Talaq proceedings are to be carried out in the Union Council
where the wife resides and if any offence relating to offences
detailed in the Family Courts Act, 1964, its trial has to be
conducted by Family Court within the precincts where the wife
resides; moreover, if a father intends to get custody of the
minor children, he has to initiate proceedings at a place where
the children reside. All these go to divulge that the main
purpose of the enactment is to accommodate the women and the
children, weaker segments of the society, due to this reason
under section 14(3) of the Act, 1964 provides that no appeal or
revision shall lie against an interim order passed by a Family
Court.
4. Having said above, now when after passing of a
decree by a Family Court, the execution petition is filed, the
Family Court executing the decree has to proceed with the same
under Section 13 of the Act, 1964 and sub-section 4 of the said
Section is relevant which reads:-
„The decree shall be executed by the Court passing
it or by such other Civil Court as the District
Judge may, by special or general order, direct.‟
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Section 13(4) of the Act, 1964 has two parts: first part says that
a decree can be executed by the Court itself and second part
says that a decree can be executed by the Civil Court as directed
by general or special order by the District Judge; meaning
thereby when a Civil Court is designated and entrusted with
duties to execute the decrees passed by a Court: Civil or
Family, it enjoys powers vested under Order XXI of the Code
of Civil Procedure, 1908, though section 17 of the Family
Courts Act, 1964 provides that the provisions of Qanun-e-
Shahadat Order, 1984 and Code of Civil Procedure, 1908
except sections 10 & 11 shall not apply to the proceedings
before any Family Court. The bar contained in this section has
been manifestly addressed by the Apex Court of the country in
Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128),
wherein it has invariably been held:-
„Thus the technical trappings of execution
provided in the C.P.C. are excluded from
application before the Family Court in execution
of a decree for maintenance. Section 13(3) of the
Act itself provides that “Where a decree relates to
the payment of money and the decretal amount is
not paid within the time specified by the Court [not
exceeding thirty days the same shall, if the Court
so directs to recover as arrears of land revenue,
and on recovery shall be paid to the decree-
holder.” This provision in the Act empowers the
Family Court to execute its own decree for
payment of money by adopting modes provided for
recovery of arrears of land revenue. In the West
Pakistan Land Revenue Act various modes of
recovery of arrears of land revenue are spelt out
and one of the modes provided for recovery of
arrears of land revenue is by selling the
T.A.No.71691 of 2021 6
immovable property of the defaulter.‟ (Underline
for emphasis)
Therefore, in order to avoid technical trapping, there remains no
need to transfer the execution petition to any other Court out of
one district to the other district where the judgment debtor
resides. The learned Executing Court seized of the matter may
adopt procedure provided under law by sending a precept
through proper channel to the Court where the judgment debtor
resides or has movable/immovable property so as to attach the
same and recover the decretal amount as arrears of land
revenue, following the methodology as provided in section 46
of the Code of Civil Procedure, 1908, which enumerates:-
„Precepts.—(1) Upon the application of the
decree-holder the Court which passed the decree
may, whenever it thinks fit, issue a precept to any
other Court which would be competent to execute
such decree to attach any property belonging to
the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall
proceed to attach the property in the manner
prescribed in regard to the attachment of property
in execution of a decree.
Provided that no attachment under a precept
shall continue for more than two months unless the
period of attachment is extended by an order of the
Court which passed the decree or unless before the
determination of such attachment the decree has
been transferred to the Court by which the
attachment has been made and the decree-holder
has applied for an order for the sale of such
property.‟
It is not meant that the provisions of the Code of Civil
Procedure, 1908 are going to be followed in stricto sensu rather
T.A.No.71691 of 2021 7
the procedure provided therein is to be adhered to by the Family
Court because the Family Court is governed by the general
principle of equity, justice and fair-play. In addition to this, if
the judgment debtor is employed in any department his salary
can also be ordered to be attached by the concerned quarters
through proper channel and he can be forced to satisfy the
decree; thus, when the main purpose of the enactment is to
protect the convenience of the weaker and vulnerable segments
of the society i.e. women and children, the same cannot be
achieved by transferring the decree to a place where they
(women and children) do not reside because they will suffer the
agony of travelling from a place to the other in order to pursue
the proceedings in execution petition before the transferee
Court and it would also endanger their lives at the hands of
judgment-debtor because of obtaining a decree against him
(judgment-debtor). When we go through the ratio of judgment
Amjad Iqbal (supra) it comes on surface that the Executing
Court of a decree passed by a Family Court may adopt every
method in order to get the decree satisfied including attachment
of property (movable or immovable), selling the property,
attachment of the salary and ordering for arrest of the judgment
debtor; all these methods are not provided under the Family
Courts Act, 1964 but the same are taken from the Code of Civil
Procedure, 1908 as these methods are not inconsistent with the
provisions of the Act, 1964 for the purpose of satisfaction of the
decree because proceedings of the Family Court, whether as a
Trial Court or an executing Court are governed by the general
principle of equity, justice and fair-play, as has been held in
Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321).
In addition to this, in a judgment reported as Muhammad
Tabish Naeem Khan v. Additional District Judge, Lahore and
others (2014 SCMR 1365), the Apex Court has invariably
held:-
T.A.No.71691 of 2021 8
„Family Court was a quasi-judicial forum, which
could draw and follow its own procedure, provided
such procedure was not against the principle of
fair hearing and trial.‟
5. Pursuant to the above, when all the proceedings at
trial stage are carried out at a place where the women and
children reside, forcing them to get transferred the execution
petition or decree to some other Court, out of District, would
certainly, as stated above, cause inconvenience and troubles to
them, which is not the myth and essence of the Family Courts
Act, 1964 as has been highlighted in its “Preamble”.
6. Concluding the above discussion and observations,
the following directions are issued to be followed by the
District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of
maintenance allowance, alternate prices of
dower or dowry articles, the provisions of
section 13(3) of the Family Courts Act, 1964
should be adhered to, which provides that,
„Where a decree relates to the payment of
money and the decretal amount is not paid
within the time specified by the Court [not
exceeding thirty days] the same shall, if the
Court so directs, be recovered as arrears of
land revenue, and on recovery shall be paid to
the decree-holder.‟
2. The District Judge will designate a Civil Judge
as Executing Court in the District as well as
Tehsils, as the case may be, where the
execution petitions for satisfaction of decrees
passed by the Judge Family Court will be filed
and executed/satisfied in accordance with law
by adopting all measures in this regard.
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3. In case the judgment debtor resides in some
other District and owns property, precept will
be transmitted for attachment purposes and
further proceedings will be taken in accordance
with law.
7. In the light of the above, the instant petition and
transfer applications, detailed supra, are hereby disposed of,
accordingly.
(SHAHID BILAL HASSAN)
Judge
M.A.Hassan
Announced in open Court on ___________.
Judge
Approved for reporting.
Judge
