LAHORE:
The Lahore High Court (LHC) set aside a court order on Tuesday over due process of property auction not being followed, disallowing a property transfer in a mother’s name as adjustment of maintenance amount of her minors from her ex-husband.
“Particularly, this leaves the minors with no maintenance again,” the high court maintained. “Hence, it is the minors who are on the losing side,” Justice Anwaar Hussain observed in his judgment.
The respondent (mother) had instituted a suit for dissolution of marriage and recovery of her dowry articles as well as the maintenance of her minor children, also respondents, from petitioner Muhammad Waqas.
The former husband’s property was transferred in the mother’s name by adjusting the amount of maintenance, which was calculated by the executing court considering the maintenance amount that the father has to pay for the minors till 2032.
“This court while exercising parental jurisdiction is perturbed from such state of affairs that on failure of the petitioner (father) to maintain the minors, on the one hand, the former has been deprived of his property, which may form the inheritance of the minors in future, and on the other hand, the same has not been transferred in the names of the minors, rather admittedly, sale deed in favour of respondent (mother) has been executed. Hence, it is the minors who are on the losing side in both eventualities,” Justice Anwaar observed.
The suit was decreed in favor of the mother on April 3, 2018 through an ex-parte judgment. Later, execution proceedings were initiated to which the petitioner did make some payments. On February 13, 2019, the matter was consigned to record room after the respondent (mother) in her statement claimed that she does not want to proceed with the execution petition.
However, in May, 2019, the execution proceedings were restored on the respondent’s application. Thereafter, on June 21, 2019, after issuing the warrant of attachment of the property of the petitioner (father) an auction schedule was chalked out on July 20, 2019 while calculating the decretal amount till the year 2035. Thereafter, the property was auctioned.
The mother purchased the said property by adjusting the amount of maintenance, which was calculated by considering the future maintenance amount of the minors till 2032.
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However, the father later challenged the auction schedule passed by the district court. The petitioner’s appeal was dismissed and the matter was taken to the LHC.
The petitioner’s counsel Chaudhry Mahmood-ur-Rehman contended to the court that no notice was issued to his client when the execution petition was restored. It was mandatory on part of the executing court that notices under Order XXI Rule 66 of the CPC should have been issued before putting the property of the petitioner to auction, the entire execution proceedings stand nullified in the eyes of the law.
Moreover, the court auctioneer, instead of acting as per the auction schedule chalked out by the executing court. He himself opted to postpone the auction – later held on October 23, 2019 instead of September 18, 2019 – as ordered by the executing court.
He argued that that petitioner’s property was attached without adopting legal formalities, adding that the decretal amount was also wrongly assessed, which is also impermissible under the law. He questioned that if, unfortunately, one minor dies a natural death would the petitioner continue paying maintenance till 2032 even after the demise of the minor.
On the other hand, the counsel for the respondents argued that if there were irregularities in the auction proceedings, the petitioner was obligated to deposit 20% of the decretal amount in compliance of Order XXI Rule 90 of the CPC, which he failed to, despite being directed by the executing court to do so. Hence, the learned court has rightly passed the impugned order and in compliance of the same, the sale deed has been executed in favour of the respondent (mother). The matter is now in the past and the transaction closed.
Justice Anwaar observed that there was nothing available on record to substantiate that the court auctioneer sought the permission of the executing court to reschedule the auction for any future date. This fact alone indicates that the auction proceedings were not carried out in accordance with the law and as per the schedule chalked out by the executing court.
There is no cavil to the proposition that the petitioner, as father of the minors, is obligated to maintain the latter and the arrears of maintenance once recovered during the execution proceedings are to be used for the benefits of the minors by fulfilling necessities of life. However, in the instant case, the future maintenance has been calculated till year 2032 and respondent (mother) has adjusted the said amount against purchase price of the property belonging to the petitioner in her own name. This leaves the minors with no maintenance.
Justice Anwaar set aside the sale of the disputed property with further direction to the petitioner to make payment of an amount of Rs1,000,000 (Rupees One Million), with the learned executing court, within 30 days from the date of receipt of certified copy of this order.
The said amount shall be adjusted against the arrears of decretal amount including monthly maintenance due till that date. Failing which, this order shall be deemed to be recalled and the present petition shall be deemed to have been dismissed.
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