IN THE HIGH COURT OF SINDH, KARACHI

Present :

Mr. Justice Fahim Ahmed Siddiqui

Const. Petition No. 1119 of 2014

Qari Hafiz Muhammad Sajid……………………..……………….….Petitioner

Versus

IV-Additional District Judge Karachi Central and 02 others.....Respondents

Date of Hearing:- 30.01.2017

Mrs. Rafat Mubeen, advocate for the petitioner

M/s. Syed Jawad Hyder Rizvi and M.K.Shikoh, advocates for respondent No.3

Ms. Yasmeen Sultana, State Counsel

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: It is the case of petitioner that he contracted marriage with respondent No.3 on 27th May 2004 against a dower amount of Rs. 50,000/-. Out of said wedlock a child namely Sameer was born on 20 June 2007. Gradually, the relations between the spouses turned antagonistic which caused to put the marital bond at an end.

2. The respondent No. 3, as next friend of her son, filed family suit No. 47/2008 for future and past maintenance of her son Sameer @ Rs. 3000/- per month. The family court decreed the suit and allowed past maintenance @ Rs.1500 per month and future maintenance @ Rs. 5000/- per month with a yearly increment of Rs. 300/-. Petitioner challenged the judgment and decree passed by learned Family Judge-IX, Karachi Central by filing an appeal bearing No. 65/2011, which was dismissed with some modification in future maintenance allowance. Meanwhile, the respondent No. 3 filed execution application No. 14/2011, which remained pending during tug of legal battle before the appellate forum.

3. After judgment of appellate court, the petitioner approached the executing court and intimated the learned judge that after modification by appellate court, the execution application in its existing form is not maintainable but the learned family judge did not agree with him and after dismissal his application, he proceeded with same execution application. The order of the executing court was again challenged before the appellate forum, but he could not succeed before the appellate court where order of executing court was maintained. The petitioner filed the instant petition challenging the judgment dated 25.02.2014 passed by the appellate court as well as the order dated 12.10.2013 passed by the executing court.

4. In support of the instant petition, the learned counsel for the petitioner made her submissions at length. She contended that after modification of judgment by the appellate court, fresh execution application to be filed and the pending execution application became infructuous. According to her, in the instant matter interim order was passed in which it was directed that no coercive action should be used against petitioner. She submitted that the salary of petitioner is being deducted as per decree of the trial court which amounts to contempt of court. She assailed the judgments of both the courts below. She urged that considering the trivial salary of petitioner, the maintenance amount is considerably higher and the amount is being deducted more than the direction of the appellate court which is illegal. According to her, after modification in decree, no deduction can be done in the existing application by executing court.

5. On the other hand, the learned counsel for the respondent submitted that the order of the appellate court is complied with by the executing court. Per him, the executing court is also recovering past maintenance as the appellate court did not touch the past maintenance. According to him as soon as the past maintenance is satisfied the routine deduction as per directive of the appellate court will be continued.

6. Arguments heard, record perused.

7. Under the law, Family Judge has vast jurisdiction in respect of family issues and G & W Cases, the Family Courts perform functions of guardian and protectors of the minors. Even, it can pass an order for the payment of interim maintenance till the final disposal of the suit to avoid the families from miseries. Similarly, Family Court is equally competent to award past maintenance of the minor. The petitioner who being real father of the minor is duty bound to provide adequate maintenance to his child and in case of default he is also bound to pay past maintenance. Maintenance of a child is an obligation from which a father cannot escape morally and legally.

8. It is the contention of the learned Council for the appellant that after modification, the executing court could not entertain the earlier execution application as the same became infructuous. The executing court as well as the lower appellate forum did not agree with the petitioner. While disposing the family appeal, the learned Additional District Judge clarified that in the previous appeal, the order of the trial court was modified and there was no need to file a fresh execution application.

9. The learned counsel for the petitioner assailed the pending execution application during her submission. In this respect, I am of the view that after modification of judgment and decree by the appellate court, it is not necessary to file a fresh execution application and this contention is also not proper that after modification, the previous execution application became infructuous, and a fresh execution application ought to be filed. It is settled law that the decree of appellate court merges under the decree of the trial court and it is the decree of the appellate court that needs to be executed. In resolving the controversy reference may be made to the case of Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCMR 241). The pertinent observations are made at page 246 of the report, which for the purpose of the present case read as under:

“It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified.”

10. The contention of learned counsel for the petitioner is that executing court is bent upon to use coercive measures for recovery of excessive amount as compared to the decree of the appellate court. According to her, trial court has overlooked that only an amount of Rs. 3000/-per month can be recovered from the petitioner. I am of the view that this controversy is also resolved by the appellate court in the impugned judgment. The appellate court has only modified the amount of future maintenance which was reduced to Rs.3000/- but the amount of past maintenance was not touched by appellate court. In such a situation, the executing court is fully justified to take steps for recovery of past maintenance from the petitioner.

11. The learned counsel for the petitioner could not point out any misreading or non-reading in the impugned judgment of the appellate court as well as the findings of the trial court regarding the period of maintenance and amount of maintenance. I did not observe any illegality in the impugned judgment, as such the same does not require any interference of this Court in constitutional jurisdiction. Petition dismissed with no order as to cost.

J U D G E