.jpg "Writ Petition against dismissal of Objection Petition in Execution") |
| Writ Petition against dismissal of Objection Petition in Execution |
In the name of ALLAH, the most beneficent, the most
merciful
Format
of Writ Petition against dismissal of Objection Petition in Execution Petition
(Family)
IN THE
W.P No. _______/2021
Farhan Aslam Malik son of Mehmood Alam Malik resident of House No. 1, Street No. 1,
Mohallah Shah Chan Chiragh, Rawalpindi
…Petitioner
Versus
1.
Mst. Rizwana Kausar wife of Farhan Yaseen resident of House No. 530/2, Mohallah
Mehrabad, Peshawar Road, Rawalpindi
2.
The Learned Additional District Judge
Rawalpindi
3.
The Learned Judge Executing Court,
WRIT PETITION UNDER
ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC
Respectfully Sheweth:
1.
That the precise facts leading to the
filing of the instant Writ Petition are that a Decree of maintenance allowance was
passed in favour of the respondent No. 1 by virtue of judgment and decree
dated
2.
That during the course of execution
proceedings, the respondent No.1 filed a schedule of payment of maintenance
allowance, regarding which the present petitioner filed his objection and the
learned Judge Family Court vide order dated 06-10-2020, dismissed the objection petition of the petitioner and ordered
a precept be issued against the petitioner, the petitioner assailed
the order dated by the learned Judge Executing Court by filing a Revision
Petition before the learned District Judge Rawalpindi which was entrusted to
the learned Additional District Judge Rawalpindi who after hearing the parties dismissed
the Revision Petition filed by the petitioner vide impugned order dated
22-12-2020 hence the instant Writ
Petition inter–alia on the followonig grounds:-
GROUNDS
a.
That the impugned orders passed by the
learned lower courts below dated 22-12-2020 and 06-10-2020 respectively are against
the law and facts borne out of the record of the present case hence not
sustainable in the eye of law.
b.
That the learned lower courts below
committed gross kind of misreading and non reading of the available evidence thus
the orders passed by the courts below are untenable.
c.
That admitted position of the matter is that
the petitioner has paid an amount of Rs. 7,67,000/- so the order of sending the
decree as a precept to another court is unwarranted, illegal, unlawful and contrary
to the record as according to the schedule furnished by the respondent No.1
dated 23-04-2019 the claimed amount was Rs. 8,01,598.10 and the petitioner has
paid an amount of Rs. 7,67,000/- so the impugned order is totally unwarranted under
the law and no order for attachment of property of the petitioner can be passed when even the amount claimed by
the respondent No.1 has been paid beside being the fact that the petitioner is
seriously challenging the schedule furnished by the respondent No. 1 as till to
date, the respondent No.1 has filed three schedules in the learned Executing
Court and which one out of these three schedules is correct was never decided
by the learned Executing Court.
d.
That another vital aspect of the matter is that
against the judgment and decree dated 18-02-2019, passed by the learned Judge
Family Court, the petitioner preferred an appeal which was decided by the
learned additional District Judge vide order dated 09-04-2019 on the strength of section 14 (2) C of Family
Courts Act and the said order was not assailed by the respondent No. 1 any
further attaining finality.
e.
That as far as maintainability of the Revision
Petition before the learned Additional District Judge is concerned, suffice it
to say is that in an execution arising out of family matters the same is
maintainable and reference can safely be placed on 02 authoritative judgments
rendered by the Apex Court of Pakistan which are PLD 2009 SC 760 and 2015 SCMR 128
which clearly stipulate that a Revision Petition is not barred pertaining to objection
regarding execution of a matter arising
out of family disputes.
f.
That the learned Revisional Court in its impugned order dated 22-12-2020 in
paragraph No. 6 observed that the petitioner has not furnished any proof that
he paid the outstanding amount as per the first order passed by the learned
Revisional Court. This observation of the learned Revisional Court is contrary
to record and based on misconception as the petitioner after passing of the
order passed by the learned Revisional Court approached the learned Executing
Court and paid an amount of Rs. 1,00,000/- on 24-10-2020 through proper bank
challan which was deposited in the learned executing court so the
observation of the learned Revisional Court
is contrary to the record and the learned Revisional Court committed gross misreading while dismissing
the Revision of the petitioner.
g.
That the learned Revisional Court observed
in paragraph No. 6 of the impugned order that since the petitioner has made a
deliberate default in payment of decretal amount so the order passed by the
learned Executing Court is justified, it is being submitted with utmost humbleness
that the petitioner has not committed any default whatsoever in payment of decretal
amount even as per the estimate / schedule filed by the respondent No.1 herself
as the petitioner has paid an amount of
Rs. 7,67,000/- till to date.
h.
That the learned Executing Court failed to appreciate
the order passed by the learned appellate court dated 09-04-2019 in its true
perspective and wrongly ordered the petitioner to pay the decretal amount with
10% annual increase from October 2010 whereas
the increase should have been made
applicable after the judgment passed by the learned trial court.
i.
That the wisdom and reason of the
legislature for granting per annum enhancement is to cater the future needs of minors
in the coming years and the 10% increase on the past maintenance allowance is against the rational and prudence of a common
man apart from being contrary to the wisdom of the legislature.
j.
That another very important feature of the
case was that the amendment with regard to 10% annual increase in maintenance
allowance was introduced in the year 2015, whereas the petitioner has been
burdened to pay 10% per annum maintenance allowance from October 2010 and it is
settled proposition of law that no retrospective effect of any legislation can
be given to any amendment.
k.
That till
todate, the learned Executing Court has not passed any viable order clarifying
that which schedule given by the respondent No.1 is correct out of the three
schedules filed by the respondent No.1 herself.
l.
That the learned
m. That
the petitioner does not have any efficacious remedy available to him except filing
the instant Writ Petition.
PRAYER:
It is therefore most respectfully prayed that the
instant Writ Petition may graciously be allowed and the impugned order dated 22-12-2020
passed by the learned Revisional Court and the impugned order dated 10-06-2020 passed
by the learned Executing Court Rawalpindi may graciously be set aside and the
order of issuance of precept by the learned Executing Court may graciously be
set aside, resulting in acceptance of objection filed by the petitioner and declaring
that the petitioner is only liable to pay the decretal amount @ Rs. 5000/- for the last 06 years commencing from the
date fixed by the learned trial court in
its judgment and the first annual increase may graciously be ordered to take effect from 18-02-2020 in the interest of
justice and fair play.
Any other
relief which this Honourable Court deems just and proper may graciously be
ordered in favour of the petitioner.
Petitioner
Through
Arslan Ali Bhatti
Advocate High Court
CC NO. 17395
CERTIFICATE:-
As per information received, it is certified that this
is the first Writ Petition on the subject matter being moved before this
Honourable Court.
Counsel