2020 C L C 970

[Lahore]
Before Muzamil Akhtar Shabir, J
MUHAMMAD MUZAMAL RIAZ----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SHORKOT, DISTRICT JHANG and 6 others----
Respondents
Writ Petition No.1126 of 2019, decided on 26th February, 2019.
Family Courts Act (XXXV of 1964)---
----S. 5, Sched & S. 17---Contract Act (IX of 1872), S. 128---Civil Procedure Code (V of
1908), S. 145---Suit for recovery of maintenance allowance---Execution petition---Liability
of surety to pay decretal amount---Scope---Petitioner stood surety of judgment debtor who
was sent to civil prison later on---Executing Court passed direction to the surety for payment
of decretal amount---Surety moved an application for summoning of father to satisfy the
decree which was dismissed---Validity---If father of minors was poor then it was the
obligation of grandfather in easy circumstances to maintain his grandchildren---
Grandchildren had right to claim maintenance allowance from their grandfather---Said right
of grandchildren did not absolve either judgment debtor or surety from making payment of
the decretal amount to the minors in terms of surety bond submitted before the Executing
Court by making himself liable to make payment in case the father of the minors did not
appear or make said payment---Liability of surety was co-extensive with that of principal
debtor unless it was otherwise provided by the contract---Petitioner had submitted surety for
Rs.5,00,000/- to be paid in default of judgment debtor and while accepting such liability he
had not made the same conditional upon or subject to any claim of the minors against
grandfather---Petitioner-surety had no right to claim that the decretal amount be recovered
from the judgment debtor or anyone else---Arrest of judgment debtor did not absolve the
surety from making payment of decretal amount and his liability was joint and several with
the judgment-debtor---Provisions of Civil Procedure Code, 1908 had not been made
applicable to the proceedings before Family Court but said Court was empowered to adopt
any procedure to regulate its own proceedings and even adopt principles of Civil Procedure
Code, 1908---Surety might be proceeded against for enforcement of his liability as provided
under S.145 of C.P.C.---Surety had agreed to make payment of decretal amount in case of
failure of judgment debtor to do so or on account of his non-appearance---Petitioner could
not be absolved from his liability to pay the agreed amount after default---Executing Court
had provided sufficient opportunities to the petitioner before proceeding against him---Courts
below had passed impugned orders in accordance with law and record of the case---
Constitutional petition was dismissed in circumstances.
D.F. Mulla's Principles of Muhammadan Law (First Edition); Rafique Hazquel Masih v.
Bank Alfalah Ltd. and others 2005 SCMR 72; Javaid Iqbal v. Judge Family Court and others
2018 MLD 1296; Muhammad Amin v. Judge Family Court and 3 others 2015 YLR 316; Lt.
Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821;
Muhammad Tabish Naeem Khan v. Additional District Judge and others 2014 SCMR 1365
and Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 rel.
Ghulam Rasool Sial for Petitioner.
Ms. Zarish Fatima, Assistant Attorney General and Muhammad Arshad Manzoor, A.A.G.
on Court's call.
Nasrullah Khan Babar, Ch. Muhammad Naseer and Ms. Uzma Razzaq Khan, Amici
Curiae.
ORDER
MUZAMIL AKHTAR SHABIR, J.----Through this constitutional petition, the petitioner
has called in question the order dated 13.12.2018 passed by the revisional court, whereby the
revision petition filed by the petitioner was dismissed and the order of the trial court dated
21.07.2018, whereby two applications filed by the petitioner were dismissed, was upheld.
2. The brief facts of the case are that respondents Nos.3 to 5 filed a suit for recovery of
maintenance allowance against Muhammad Ashraf, respondent No.6/judgment-debtor
("respondent No.6") which was decreed on 23-9-2011 and executing petition is pending
adjudication before the executing court. During execution proceedings, the petitioner stood
surety for respondent No.6, who had disappeared later on. With the efforts of the petitioner,
respondent No.6 was produced before the executing court and was sent to civil prison. The
learned executing court vide its order dated 05.04.2017 issued a direction to the petitioner to
pay the decretal amount. The petitioner filed two applications, one for setting aside the order
dated 05.04.2017 and the second for summoning father of respondent No.6 to court to satisfy
the decree. Both the applications were dismissed vide order dated 21.07.2018. Feeling
aggrieved of the said order, the petitioner filed a revision petition which was also dismissed
vide order dated 13.12.2018 passed by learned Addl: District Judge, Shorkot. Both the afore
referred orders dated 21.07.2018 and 13.12.2018 are under challenge by filing instant
petition.
3. Learned counsel for the petitioner has argued that father of respondent No.6 is a
landlord and is in a position to satisfy the decree passed by the trial court; that the petitioner
stood surety for respondent No.6 on humanitarian ground without deriving any benefit; that
the impugned orders are against the law and result of misreading and non-reading of material
available on record, therefore, are liable to be set-aside.
4. Learned Law Officers and learned Amici Curiae have maintained that once having
stood as surety for payment of decretal amount, the petitioner cannot be absolved from
satisfying the decree without consent of the decree holder or substitution of surety bond with
leave of the court merely on the ground that the grandfather of the minors being in affluent
circumstances is duty bound to maintain the minors.
5. Heard. Record perused.
6. The moot point before this Court is that whether the petitioner, having stood as surety
for respondent No.6, could absolve himself from his liability to pay the decretal amount on
the grounds that he had got the respondent No.6 arrested, who was sent to civil prison for one
year and respondent No.7 in affluent circumstances being grandfather of minors is obliged to
maintain the minors, therefore, the decree be executed against his property.
7. The minors obtained decree for maintenance allowance against their father/respondent
No.6 on 23.09.2011 and during execution proceedings, the petitioner stood as his surety vide
order dated 19.11.2015. Subsequently, the respondent No.6 without making payment of
decretal amount disappeared from the court and his warrants of arrest were issued on
27.11.2015, 11.12.2015, 15.01.2016, 19.02.2016 and 19.03.2016, on which date, the court
while issuing warrants of arrest of respondent No.6 directed the decree holders to provide
details of property of the surety/petitioner. The same order was repeated on various dates
whereafter vide order dated 30.07.2016 the court issued orders to decree holders to provide
details of property of the petitioner and his address so he may be arrested for satisfaction of
the decree. On 29.10.2016 the judgment-debtor was arrested and produced before the court
and was directed to pay the decretal amount and on his refusal, he was sent to civil prison.
Subsequently, on 05.04.2017 the court while observing that the respondent No.6 had been
sent to civil prison for a period of one year due to non-payment of decretal amount directed
the petitioner to pay the same and when the said amount was not paid, issued warrants of his
arrest. On 07.07.2017, the petitioner filed an application for recalling of the said order on the
ground that the decretal amount be recovered from respondent No.7 who is father of
respondent No.6 / judgment-debtor and grandfather of the minors and liable to make such
payment. The petitioner also filed another application for summoning the father of
respondent No.6 but both the said applications were dismissed by the trial court.
8. First this Court will deal with the objection raised by the petitioner that the grandfather
is liable to maintain minors so his surety be absolved. Although the statutory law does not
provide for mode of maintenance of the minors by their grandfather, the said aspect is
provided by the "Muhammadan Law" which has been compiled by D.F. Mulla and for this
purpose, reference may be made to para 370 of D.F. Mulla's Principles of Muhammadan Law
(First Edition) compiled by Al-Qanoon Publishers which is reproduced below:
"Maintenance of children and grandchildren.
(1) A father is bound to maintain his sons until they have attained the age of puberty. He
is also bound to maintain his daughters until they are married. But he is not bound to
maintain his adult sons unless they are disabled by infirmity or disease. The fact that
the children are in the custody of their mother during their infancy (S. 352) does not
relieve the father from the obligation of maintaining them. But the father is not bound
to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor, and incapable of earning by his own labour, the mother, if she is
in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother is also poor, the obligation to maintain
the children lies on the grandfather, provided he is in easy circumstances."
9. The perusal of the afore referred para makes it clear that in case the father of the minor
is poor, it is the obligation of grandfather in easy circumstances to maintain his grandchildren
and his grandchildren have a right to claim maintenance allowance from him which aspect of
the matter is to be decided by the court on its own merits according to the material available
before it. However, the said provision which provides an independent right to the minors to
claim maintenance allowance from their grandfather does not absolve either judgment-debtor
or the petitioner from making payment of the decretal amount to the minors in terms of the
surety bond submitted by him before the court vide order dated 19.11.2015 by making
himself liable to make the payment in case the father of the minors does not appear in the
court or make the said payment. Section 128 of the Contract Act, 1872 provides that the
liability of surety is co-extensive with that of principal debtor, unless it is otherwise provide
by the contract. In the present case the petitioner has submitted surety for Rs.5,00,000/- to be
paid in default of respondent No.6 and while accepting such liability, the petitioner had not
made the same conditional upon or subject to any claim of the minors against the
grandfather, therefore, said argument cannot be pressed into service to avoid such liability.
Besides, the surety has no right to claim that the decretal amount be recovered from the
judgment debtor or anybody else or the decree holder may be directed to assert his right
against any other party or stranger to the proceedings before recovery of the same from the
surety. Reliance is placed on Rafique Hazquel Masih v. Bank Alfalah Ltd. and others (2005
SCMR 72).
10. Another ground raised by the petitioner is that as he has produced respondent No.6 in
court who has been sent to civil prison by executing court, therefore, he is not obliged to
make payment of the decretal amount. Suffice it to say that arrest of the judgment debtor
does not absolve the surety from making payment of the decretal amount and his liability is
joint and several with the judgment debtor for making such payment. Reliance in this behalf
is placed on Javaid Iqbal v. Judge Family Court and others (2018 MLD 1296) and
Muhammad Amin v. Judge Family Court and 3 others (2015 YLR 316). Even otherwise,
although provisions of Code of Civil Procedure, 1908 ("C.P.C.") have not been made
applicable to the proceedings before Family Court by virtue of Section 17 of the Family
Courts Act, 1964 ("Act") the said courts are empowered to adopt any procedure to regulate
its own proceedings and for the said purpose, may adopt principles of C.P.C. as well.
Reliance in this behalf is placed on the judgment reported as Lt. Col. Nasir Malik v.
Additional District Judge, Lahore and others (2016 SCMR 1821), Muhammad Tabish Naeem
Khan v. Additional District Judge and others (2014 SC 1365) and Farzana Rasool and 3
others v. Dr. Muhammad Bashir and others (2011 SCMR 1361). A surety may be proceeded
against for enforcement of his liability as provided under Section 145 of C.P.C. which is
reproduced below:
"S.145 Enforcement of liability of surety.----Where any person has become liable as
surety --
a) for the performance of any decree or any part thereof, or
b) for the restitution of any property taken in execution of a decree, or
c) for the payment of any money, or for the fulfillment of any condition imposed on any
person, under an order of the Court in any suit or in any proceedings consequent
thereon,
 the decree or order may be executed against him, to the extent to which he has rendered
himself personally liable, in the manner herein provided for the execution of decrees,
and such person shall, for the purposes of appeal, be deemed a party within the
meaning of Section 47:
Provided that such notice as the Court in each case thinks sufficient has been given to the
surety."
11. Perusal of the record shows that when the petitioner stood as surety on 19.11.2015, he
had agreed to make payment of the decretal amount in case of failure of respondent No.6 to
do so or on account of his non-appearance. Although the petitioner claims that the judgment-
debtor was got arrested by him and on that account he claims that respondent No.6 be
directed to substitute his surety, the said claim is without any substance for the reasons that
for substituting the petitioner's surety there must be some person available in the court who
agrees to stand surety for payment of the decretal amount in his place and that too with the
leave of the court. In the present case no other person has agreed to stand surety for payment
of decretal amount in place of the petitioner. Moreover, the petitioner claims that the
respondent No.6 be directed to substitute some other person in his place, however, the said
request could have been made by the judgment debtor himself with permission of the court
by producing another person who had agreed to stand as surety to the satisfaction of the court
or in case the court required him to do so. After default had occurred there was no reason
either to allow substitution of surety bond submitted by the petitioner or to absolve him from
his liability to pay the agreed amount which had become due against the petitioner in view of
principles laid down in Section 128 of the Contract Act, 1872 and Section 145, C.P.C.
12. At the most, the petitioner was entitled to receive notice from the court which in the
opinion of the court is sufficient for proceeding against the surety in terms of Section 145,
C.P.C. The court provided sufficient opportunities to the petitioner before proceeding against
him. Consequently, the petitioner cannot claim to be absolved from his liability in terms of
the surety bond. The claim of the petitioner that he stood as surety on humanitarian grounds,
therefore, the proceedings against him be dropped is without any legal basis and is declined,
besides it is suffice to say that his right to claim indemnity from respondent No.6 is protected
by Section 140 of the Contract Act, 1872.
13. For what has been discussed above, it is observed that the courts below were justified
to dismiss both the applications filed by the petitioner and said decisions warrant no
interference being in accordance with law and record of the case.
14. This petition being devoid of any force is dismissed.
ZC/M-147/L Petition dismissed.