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Petitioner: SALEEM ULLAH VS Respondent: ABADAT ALI MALIK
2000 C L C 1648
2000 C L C 1648
[Lahore]
Before Mrs. Fakhar‑un‑Nisa Khokhar, J
SALEEM ULLAH‑‑‑Petitioner
versus
ABADAT ALI MALIK and others‑‑‑Respondents
Writ Petition No.7551 of 2000, decided on 3rd May, 2000.
West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 13(3) & (4)‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.80 & 4(7)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Decree of maintenance allowance‑‑‑Execution of‑‑‑Liability of surety‑‑‑Suit for maintenance allowance having been decreed, decree‑holder sought execution of said decree‑‑‑House, of which judgment‑debtor was owner up to one‑third share, was put to auction for recovery of decretal amount as recovery of land revenue‑‑‑Petitioner appeared as surety of judgment‑debtor before Court Auctioneer and undertook to pay decretal amount to decree holder which undertaking was accepted on behalf of decree‑holder‑‑ Petitioner/surety had subsequently, contended that he, not being a party to judgment and decree passed by Court, could not be held liable to pay the decretal amount ‑‑‑Validity‑‑‑Decretal amount having been assessed as Land Revenue, provisions of S.80 of West Pakistan Land Revenue Act, 1967 were applicable and petitioner being surety having made himself bound to pay decretal amount, was responsible for payment of said amount.
Muhammad Iqbal Wehniwal for Petitioner.
ORDER
The brief facts of this writ petition are that vide judgment and decree, dated 15‑6‑1994 the maintenance allowance of Rs.500 per child per month was granted by the learned Family Court, Gujranwala.
2. The respondent went for execution of the said judgment and decree. A house situated in Baree Wali Gali, Tajpura, Gharjak, District Gujranwala was attached. The said house was owned by three persons namely the judgment‑debtors Muhammad Ijaz, Mst. Zahida Saleem Ullah and Muhammad Tufail. The proclamation through wall paper was made on 2‑3‑2000. Auction proceedings were commenced. Mst. Zahida Saleem Ullah one of the co‑sharers of the house under auction is the wife of the petitioner. An objection was made before the Court Auctioneer that the judgment‑debtor is the owner of 1/3rd of the share and that can only be put to auction for the satisfaction of the decree of Rs.58,000. The petitioner appeared before the Court Auctioneer and gave a statement that:‑‑
It is signed by him. Then there is a statement of Muhammad Yousaf on behalf of the decree‑holder that:‑‑
3. Learned counsel for the petitioner submits that the petitioner is not a party to the judgment and decree, therefore, he cannot be held liable to pay the aforesaid amount.
4. I have heard the learned counsel for the petitioner and have perused the record.
5. Under section 13(3) of the Muslim Family ‑Courts Act, 1964 a decree is enforced which is passed by the learned Family Court and sub clauses (3) and (4) are reproduced below:‑‑
"(3) Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, 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.
(4) 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."
6. When the arrears under a decree are assessed as land revenue then the provision of section 80 to onward of the Land Revenue Act are made applicable. A defaulter‑under section 80 of the Land Revenue Act is defined in section 4(7) of the Act as meaning a person liable for an arrears of land revenue and as including "a person who is responsible as surety for payment of the arrears"
7. The petitioner stood as a surety‑. He was under no obligation to bind himself but he did bind himself to pay a decretal amount, therefore, no interference is required by this Court in the impugned order passed by the learned Civil Judge.
8. In view of what has stated above the instant writ petition is dismissed in limine.
H.B.T./S‑38/L Petition dismissed.'