2019 Y L R 2924
[Lahore (Multan Bench)]
Before Asim Hafeez, J
ABDUL MAJEED---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SHUJABAD and 2 others---Respondents
Writ Petition No. 555 of 2019, decided on 30th January, 2019.
(a) Family Courts Act (XXXV of 1964)---
----S. 13---Civil Procedure Code (V of 1908), O. XXI, R. 17---Enforcement of
decrees---Amendment in execution petition---Inherent powers---Lack of bona fide--
-Scope---Petitioner assailed orders of Family Court and Appellate Court whereby
permission was granted to the respondent to implead minor as a decree-holder in
the execution petition---Validity---Authority of executing court could not be
undermined or narrowly construed to take away an inherent power/authority to
allow amendment to remove a defect, sought to be removed within the prescribed
period of limitation and without any prejudice to the petitioner; such authority was
envisaged under R. 17 of [Link], C.P.C.---No embargo was placed on the executing
court to allow amendment in the execution, as long as it caused no prejudice and
the intended amendment did not travel beyond the decree---Intent and objective to
deny fruits of decree to minor, who happened to be a daughter of the petitioner, was
mischievous and lacking bona fides---No reason to exercise discretion when no
prejudice was caused to the petitioner---Constitutional petition was dismissed.
Abbasuddin Chowdhury v. Chandra Mohan Chowdhury and others PLD 1967
Dacca 512 and Popular Industries Commercial Agencies, Khairpur v. Khairpur
Textile Mills Ltd. PLD 1972 Kar. 617 rel.
(b) Family Courts Act (XXXV of 1964)---
----Ss. 17, 13, 5 & Part I, Sched.---Civil Procedure Code (V of 1908), O. XXI---
Provisions of Civil Procedure Code, 1908---Applicability---Jurisdiction of Family
Court---Enforcement of decrees---Procedure---Scope---Exclusion of Civil Procedure
Code, 1908 envisaged in section 17 of Family Courts Act, 1964 is not applicable to
the execution proceedings--- Execution proceedings shall be regulated and
proceeded with through O. XXI, C.P.C.---Exclusion is only meant for matters in
respect of the Part I of the Schedule of Family Courts Act, 1964.
Rao Ubaid Ali Bahadur for Petitioner.
ORDER
ASIM HAFEEZ, J.---Through this petition, the petitioner has impugned the
orders dated 24.10.2018 and 14.12.2018, passed by the learned Judge Family
Court/Executing Court - and the Additional District Judge Shujabad respectively,
whereby permission was granted to the respondent No.3 to implead Mst. Asima
Bibi (Minor), being a co-decree holder with the respondent No.3, which minor
decree holder was not impleaded when execution application was filed.
2. The main grievance of the petitioner through this petition was the permission
granted by learned Executing Court, vide order dated 24.10.2018, whereby it
accepted application, filed by the respondent No.3 for seeking amendment in the
execution petition, for incorporating name of co-decree holder, Mst. Asima Bibi
(Minor), who was party to the Judgment and Decree dated 13.03.2017, as party to
the execution petition against cost of Rs.200/. The order of the learned executing
court was upheld by the learned appellate court. Hence, instant petition.
The Judgment and Decree dated 13.03.2017 is impugned through Writ Petition
No.4898/2017, which is pending adjudication, wherein the minor was impleaded as
party.
3. Learned counsel for the petitioner contends that no amendment could be
allowed in the execution proceedings, hence, the orders impugned are without
lawful authority and of no legal effect.
4. There is no dispute that Minor namely Mst. Asima Bibi is beneficiary of the
Judgment and Decree dated 13.03.2017, along with respondent No.3--unless said
decree is set-aside or upset. The question seeking determination is that whether the
executing court is vested with the authority / power to allow co-decree holder to be
impleaded as party to the execution proceedings when said decree holder was not
impleaded as party initially. Upon deeper examination of section 17 of West
Pakistan Family Courts Act 1964 (Act of 1964) it is evident that exclusion of Code
of Civil Procedure 1908 ("Code of 1908"), envisaged therein, is not applicable to
the execution proceedings, which shall be regulated and proceeded with through
Order XXI of Code of 1908. The exclusion is only meant for matters in respect of
the Part I of the Schedule thereof. Record revealed that execution application, in
writing, was filed in terms of Order XXI Rule 2 thereof, wherein one of the decree
holder was left-out. To appreciate the powers of the executing court, a reference is
required to be made to Rule 17 of Order XXI, which reads as;
"17. Procedure on receiving application for execution of decree.---(1) On
receiving an application for the execution of a decree as provided by rule 11,
sub-rule (2), the Court shall ascertain whether such of the requirements of
rules 11 to 14 as may be applicable to the case have been complied with;
and, if they have not been complied with, the Court may reject the
application, or may allow the defect to be remedied then and there or within
a time to be fixed by it.
(2) Where an application is amended under the provisions of sub-rule (1), it shall
be deemed to have been an application in accordance with law and presented
on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialed by the
judge.
(4) When the application is admitted, the Court shall enter in the proper register
a note of the application and the date on which it was made, and shall,
subject to the provisions hereinafter contained, order execution of the decree
according to the nature of the application:
Provided that, in the case of a decree for the payment of money, the value of the
property attached shall, as nearly as may be, correspond with the amount
due under the decree.
5. It is clear that the executing court, in terms of Rule 17-ibid, is obligated to
examine the execution application and allow amendment, if any defect is found
therein - in terms of Rules 11 to 14 of Order XXI - and may dismiss application if
no amendment is made pursuant to the direction. In this case, the executing court
has not identified the defect of leaving out co-decree holder from the array of
parties but allowed the same upon filing of an application seeking amendment.
Whether inaction or failure of the court to identify an obvious defect - whereby
minor and beneficiary of the decree was not impleaded, could be made a ground to
deny impleadment of minor as applicant, for the execution of the decree. The
authority of the executing court cannot be undermined or narrowly construed to
take-away an inherent power/ authority to allow amendment to remove a defect -
which is sought to be removed within the prescribed period of limitation and
without any prejudice to the petitioner - when such authority is envisaged under
Rule 17 of Order XXI of Code of 1908. There is no embargo on the executing court
to allow amendment in the execution, as long as it causes no prejudice and the
intended amendment does not travel beyond the decree. A reference is made to
judgment reported as Abbasuddin Chowdhury v. Chandra Mohan Chowdhury and
others (PLD 1967 Dacca 512).
"The next and last point, which is raised in this appeal is, whether an amendment
is permissible in an execution proceeding. To us it seems clear that there is
no embargo upon granting of an amendment in execution proceedings. This
proposition has been fully enunciated and discussed in the case of
Nourangilal Marwari v. Sm. Charubala Dasi (36 C W N 618). Sir John
Rankin, C.J., in delivering the judgment of the Division Bench of that Court,
has referred to such an argument as "a thing, which is almost ludicrous as an
argument". In the said judgment he has referred to an oft-quoted decision of
a Full Bench of that Court in the case of Asgar Ali v. Troilokya Nath (ILR
17 Cal. 631). It is obvious that that case has decided a point which has no
bearing upon the question which confronts us in the present case. The
aforesaid Full Bench decision is no authority for the proposition that an
amendment is not permissible in execution proceedings. That decision is
only a pronouncement relating to Order XXI, rule 17, of the Code of Civil
Procedure, sub- rule (1) of which runs thus
"(1) On receiving an application for the execution of a decree as provided by
rule 11, sub-rule (2), the Court shall ascertain whether such of the
requirements of rules 11 to 14 as may be applicable to the case have been
complied with; and, if they have not been complied with, the Court shall
allow the defect to be remedied then and there or within a time to be fixed
by it. If the defect is not remedied within the time fixed the Court may reject
the application."
It would be clear that the requirement of Order XXI, rule I7(I), is that a Court is
required to examine an application for execution to see whether the
requirements of rules 11 to 14 of that Order have been complied with by the
applicant. This enquiry must be done prior to the admission or registration
of the application under Order XXI, rule 17(1). The Court may allow the
applicant time to remedy the defect, if any, noticed by it in the application.
This means that the Court is at liberty to allow an amendment with regard to
defects in observance of rules 11 to 14 and such amendment may be allowed
prior to the registration of the application because it is the duty of the Court
to reject an application where the formalities required by rules 11 to 14 are
not complied with. The essence of the Full Bench decision seems to be that
once an application is registered and the execution case proceeds, then no
amendment under Order XXI, rule 17(1) can be made because the applicant
has, to quote a popular phrase, missed the bus. This seems to be the
distinctive feature of the aforesaid Full Bench decision. Sir John Rankin, C.
.1. in Nourangilal Marwari's case is also of the same opinion. But this is far
from saying that no amendment is permissible in respect of an execution
application. Only amendments with a view to comply with Order XXI, rule
17(1) must be made before the application is registered, because non-
compliance with the terms of Order XXI, rule 17(1) must lead otherwise to
the rejection of the application.
Hassan, J., in deciding the Second Miscellaneous Appeal in this Court has also
taken the same view. We are in agreement with the view expressed by
Hassan, J., for reasons indicated above.
To sum up, we may observe that the execution case having been filed within
three years from the date when the last execution proceeding was dismissed,
was within time because the judgment-debtor died alter the institution of the
execution proceedings which were dismissed on the last occasion. Order
XXII, rule 12(sic) of the Code of Civil Procedure, does not apply to
execution proceedings. It cannot be contended that in no case there can be
an amendment of an application for execution after it has been registered.
[Emphasis added]
6. No illegality or jurisdictional defect is found in the orders impugned. It was
not the case of the petitioner that court highlighted defect of missing one of the co-
decree holder and passed any order for removal of such defect. Notwithstanding,
that Order VI, Rule 17 of code of 1908 would not apply but authority of executing
Court to allow removal of defects can be exercised by such Court, which is done by
way of amendment. Reference is made to judgment reported as "Popular Industries
Commercial Agencies, Khairpur v. Khairpur Textile Mills Ltd." (PLD 1972 Karachi
617). The intent and objective to deny fruits of decree to minor - who happens to be
a daughter of the petitioner - is mischievous and lacking bona fides, hence, there is
no reason to exercise discretion when no prejudice is caused to the petitioner and
substantial compliance has been done by the executing court, which is rightly
endorsed by the appellate court.
7. In the circumstances, the orders dated 24.10.2018 and 14.12.2018 do not call
for any interference in the exercise of the judicial review jurisdiction.
8. In view of the above, this petition is without any merit and same is, therefore,
dismissed.
SA/A-63/L Petition dismissed.
;
