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| 2025 clc 1820 |
فیملی کورٹ کی ڈگری کی تعمیل: ضامن کی جائیداد بھی نیلام کی جا سکتی ہے
مختصر کہانی
اصل مقروض نے عدالتی ڈگری پر عمل درآمد نہیں کیا
ضمانتی مچلکہ کے متن میں کچھ ابہام
جب کوئی شخص خود عدالت کے سامنے ایسی ذمہ داری قبول کر لیتا ہے
نتیجہ
Must read judgment.
2025 CLC 1820
[Lahore]
Before Muhammad Sajid Mehmood Sethi, J
MEHBOOB ALAM ---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, LAHORE and others ---Respondents
Writ Petition No. 29329 of 2020, heard on 15th April, 2025.
Family Courts Act (XXXV of 1964)-
-S. 5. Sched.--Contract Act (IX of 1872), S.128-Suit for recovery of maintenance allowance and dowry articles-Decree-Execution of decree against a surety-Surety, a surety---Surety, liability of-Auctioning of his (surety) properties for satisfaction of decree-Ambiguity in surety bond, effect of-Despite the ambiguity in surety bond, the undertaking given by the surety at the t the back of it would be binding upon him-Facts in brevity were that the petitioner stood as a surety for the judgment-debtor in execution proceedings arising from an ex-parte decree passed by the family court for recovery of maintenance and dowry articles in favour of respondent No.3 (lady) and her minors-The decree was suspended by the executing court subject to furnishing a surety bond equal to the remaining decretal amount, and the petitioner submitted a surety hond-Upon continued non-compliance of decree by the judgment debtor, executing court passed orders for the aud the auction of the petitioner's (surety's) property to to satisfy the decree, leading to the filing of the instant writ petition challenging such orders---Pivotal point for determination before the High Court was "whether the executing court lawfully proceeded against the petitioner (surety) for full satisfaction of the decree, including attachment and auction of his property, in light of the ambiguity between the written contents of the surety bond and the petitioner's undertaking recorded on its reverse side"---Held: Contents of the surety bond showed that it was to the extent of Rs.160,000/-, but the statement of the surety, recorded by the court, on the backside of the surety bond, clearly showed that petitioner stood surety for the remaining decretal amount at that time-The statement recorded by the petitioner on the backside of surety bond described that in case of non-payment of decretal amount by the judgment-debtor, petitioner (surety) would have no objection upon satisfaction of the decree by way of attachment of his (surety) property-Petitioner undertook to satisfy the remaining decretal amount, whereas the surety bond submitted on his behalf contained altogether different version-There was clear ambiguity found in the surety bond, whereas, the undertaking given by petitioner on the hackside thereof was not ambiguous and its plain reading led to no other meaning but that the petitioner/surety held himself responsible for satisfaction of the entire remaining amount and offered his property to be attached in case of default by the judgment-debtor---Surety bond must must be read in its ordinary meaning aning and when words contained therein were unambiguous, there reason to apply any other to its construction, however, in this case, the contents of surety bond were vague and unclear as compared to the undertaking given by petitioner-Petitioner (surety) himself made him liable to pay the decretal amount in place of the judgment-debtor on his failure to satisfy the decree-The petitioner (surety) then could not wriggle out of his own undertaking-Decree could also he executed against a surety-As regards petitioner's stance that after arrest of judgment-debtor/respondent No.4, he was absolved from making payment of decretal amount, arrest of judgment-debtor did not absolve the surety from making payment of decretal amount as his liability was joint and several with the judgment-debtor-Petitioner (surety) was liable to pay the remaining decretal amount-No jurisdictional defect or material irregularity was pointed out by the petitioner (surety) in the orders under challenge-Constitutional petition was dismissed, in circumstance,
Messrs State Engineering Corporation Ltd, v. National Development Finance Corporation and others 2006 SCMR 619 rel.
Muhammad Akram v. Additional District Judge and 5 others 2023 CLC 702; Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others 2015 YLR 316; Haji Muhammad Ashraf v. Maqbool Hussain and 3 others PLJ 2015 Lahore 475; Shafiullah v. Saifullah and 7 others PLD 2017 Peshawar 203; Ghulam Shabbir v. Mst. Tanzeela Nusrat and others 2023 CLC 2169; Muhammad Muzamal Riaz v. Additional District Judge, Shorkot, District Jhang and 6 others 2020 CLC 970 and Masood-ul-Hassan v. Additional District Judge and others 2024 CLC 1744 ref.
Khawar Ikram Bhatti for Petitioner. Nazir Ahmad Ch. for Respondents.