Resima Sultana Vs. Khaez Ahmed Mojumder

Resima Sultana (Appellant)

Vs.

Khaez Ahmed Mojumder (Respondent)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

ATM Afzal CJ

Mustafa Kamal J                                                     

Latifur Rahman J                            

Md. Abdur Rouf J

BB Roy Choudhury J

Judgment : October 31st, 1996

 

Lawyers Involved:

Md. Ozair Farooq, Advocate-on-Record— For the Appellant

Miah Abdul Gafur, Advocate-on-Record — For the Respondent

Civil Appeal No.  97 of 1993

(From the judgment and order dated 22nd and 29th April, 1993 passed by the High Court Division in Civil Revision No.  1366 of 1992).

JUDGEMENT

ATM Afzal CJ: The main question raised for decision in this plaintiffs appeal by leave is whether a family court has power under sub-section (5) of section 16 of the Family Courts Ordinance 1985 (Ordinance No.  XVIII of 1985, briefly, the Ordinance, to direct payment of any money to be paid under a decree passed by it during execution proceeding. The High Court Division has answered the question in the affirmative and it will be seen at the end that the question, not a very difficult one, has been answered correctly.

2. The appellant as plaintiff instituted Family Suit No. 35 of 1988 in the Family Court (Senior Assistant Judge, Sadar, Comilla) claiming dower and maintenance from the defendant-respondent. The suit was decreed on 13-6-89 for an amount of Taka 1,77,575.00 Taka 1, 75,000.00 as dower and Taka 2,575.00 for maintenances for the period of iddat. The decree was drawn up on 17-8-89 under section 16(1) of the said Ordinance.

3. The respondent preferred family appeal No. 24 of 1989 before the District Judge, Comilla against the aforesaid judgment and decree but the appeal was dismissed by judgment and decree dated 17-4-1990.

4. On 19-10-89 the appellant filed family decree execution case No. 7 of 1989 under section 16 (3) (b) of the Ordinance. The respondent filed an application under section 16(3) (a) praying for monthly instalment of the attachable portion of his salary for satisfaction of the decree. The family Court rejected his application taking the view, inter alia, that it was the option of the decree-holder to follow any procedure permitted by law to obtain satisfaction of the decree. The respondent took an appeal to the District Judge, Comilla against the said order, Family Court Appeal No. 27 of 1990, and the learned District Judge, by his order dated 9-8-1990, dismissed the appeal on the ground that it was not maintainable. The respondent then took a revision from the order of the learned District Judge, Civil Revision No.  1676 of 1990, before the High Court Division and obtained a Rule but there was no order of stay of the execution proceeding; even then the execution case was stayed by the executing Court. On the prayer of the appellant, however, the stay of the execution case was vacated whereupon the appellant prayed for an order of stay in the pending revision case. The High Court Division granted a limited stay on condition of payment of Taka 50,000.00 by order dated 27-2-92. The respondent did not comply with the order of the High Court Division and instead filed an application for withdrawal of the revision case which was allowed by the High Court Division and the Rule was discharged on 16-3-92 for non-prosecution. Thereafter on 17-3-92 the respondent filed an application in the execution case, this time under section 16(5) of the Ordinance, praying for monthly instalment alleging that he was a service-holder and except his salary he had no other assets and as such, it would not be possible for him to satisfy the decree except by way of making payment by instalments. On 2 1-3-92 the decree-holder appellant was absent and the family Court upon considering that the respondent had a net monthly salary of Taka 5,227.00 permitted him to deposit in favour of the decree-holder the first instalment of Taka 3,575.00 and then a monthly instalment of Taka 2,500.00. The appellant filed objection against the said order but the family Court, by its order dated 19-4-92, rejected the same, inter alia, upon view that the decree-holder could lake an appeal against the order allowing instalment. The appellant instead of taking an appeal moved the High Court Division in revision and obtained a Rule in Civil Revision No.  1366 of 1992. A learned Single Judge, by the impugned judgment and order dated 29 April, 1993, upon hearing the parties discharged the Rule holding that in enforcing a decree for money the Court may on the prayer of the judgment-debtor direct payment of the decretal amount in suitable instalments, that such a stage comes after the delivery of judgment as provided in section 15 and that the impugned order of the Family Court dated 21-3-92 and 19-4-92 suffered from no legal infirmity resulting in an error in the decision occasioning failure of justice.

5. This appeal has arisen out of the aforesaid judgment and order and the question raised, as indicated above, out of the aforesaid circumstances.

6. Md. Ozair Farooq, learned Advocate-on- Record for the plaintiff-appellant, has made a two-fold submission. His first contention is that a family Court may direct under section 16(5) of the Ordinance any money to be paid under a decree in instalments only at the time of passing of the decree and not thereafter i.e. during the execution of the decree. His second contention is that even if it is permissible for a family Court to allow instalments in course of an execution proceeding, it cannot do so as an executing Court, for; the authority to allow instalments has been vested with the family Court as a trial Court.

7. Ozair Farooq in developing his second submission has argued that a Court executing a decree has no power to alter or vary the terms of the decree. An order directing instalments is an order which varies the decree. In support of his contention that an executing Court is not competent to direct payment of decretal amount by instalments he has referred to several decisions; namely, Gobardhan Prashad vs. Bishunath Prasad AIR 1921 Patna 340, Gobardhan vs. Dee Dayni AIR 1932 Allhabad 273 (FB), Bilimoria vs. Central Bank of India AIR 1943 Nagpur 340 (FR), J Krishnareddy vs. B Ramagopalaiah AIR 1985 Andhra Pradesh 49.

8. For an answer to the question raised in this appeal it is necessary to examine the provisions of section 15 and 16 of the Ordinance which relate to writing of judgment and enforcement of decree and are as follows:

15. Writing of judgment.—(1) Every judgment or order of a Family Court shall be written by the presiding Judge or from the dictation of such Judge in the language of the Court and shall be dated and signed by the Judge in open Court at the time of pronouncing it.

(2) All judgment and orders which are appealable shall contain the point for determination, the decision thereon and the reason therefor.

16. Enforcing of decrees.—(1) A Family Court shall pass a decree in such form and manner, and shall enter its particulars in such register of decrees as may be prescribed.

(2) If any money is paid, or any property delivered, in the presence of the Court in satisfaction of the decree, it shall enter the fact of such payment or delivery in the aforesaid register.

(3) Where the decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the decree shall, on the prayer of the decree-holder to be made within a period of one year from the expiry of the time so specified, be executed-

(a) as a decree for money of a Civil Court under the Code, or

(b) as an order for payment of fine made by a Magistrate under the Code of Criminal Procedure 1898 (Act V of 1898) and on such execution the decretal amount recovered shall be paid to the decree-holder.

3A) For the purpose of execution of a decree under sub-section (3)(a), the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.

(3B) For the purpose of execution of a decree under sub-section (3)(b), the Judge of the Family Court shall be deemed to be a Magistrate of the first class and shall have all the powers of such Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1898), and he may issue a warrant for levying the decretal amount due in the manner provided in that Code for levying fines, and may sentence the judgment debtor, for the whole or any part of the decretal amount remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to three months or until payment if sooner made.

(3C) When a decree does not relate to payment of money, it shall be executed as a decree, other than a decree for money of a Civil Court and for that purpose the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.

(4) The decree shall be executed by the Family Court passing it or such other Family Court to which the decree may be transferred for execution by the Court passing it and in executing such a decree the Court to which it is transferred shall have all powers of the Family Court passing the decree as if the decree were passed by it.
(5) The Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit.
9. It may be observed that in section 20 of the Ordinance it has been laid down that save as otherwise expressly provided by or under the Ordinance the provisions of the Code of Civil Procedure except sections 10 and 11 shall not apply to proceedings before the family Courts.

10. Order XX CPC relates to judgment and decree which evidently does not apply to a proceeding before the Family Court. Even then ii will be useful to look into the provisions for payment by instalments under a decree as provided in the general law i.e. the Code of Civil Procedure. Order XX rule 11 CPC is as follows:
11. (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(2) After the passing of any such decree the Court may, on the application of the Judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

11. It is clear from the above that under sub-rule (1) the authority has been given to the Court to allow payment of the decretal amount by instalments for any sufficient reason at the time of passing the decree. Under sub-rule (2) the authority to allow instalments may be exercised on the application of the judgment-debtor and with the consent of the decree-holder even after the passing of the decree. For an application for instalments under sub-rule (2) the limitation under article 175 of the Limitation Act is six months from the date of the decree.

12. The decisions cited by Mr. Qzair Farooq are in connection with the powers of the Court to allow instalments under rule 11, Order XX CPC. Those authorities support the view, there are contrary decisions also, that an executing Court is not competent to allow instalments and such, power vests only in the Court which has passed the decree. This view has been taken apparently following the well-settled proposition that an executing Court cannot go behind the decree. The said decisions, in the first place, are not apt for the present, for we are considering in this case a special statute laying down special provisions relating to judgment and enforcement of decrees.

13. It has been noticed that under the general law the trial Court may allow payment by instalments even after the passing of the decree under certain conditions. Let us see whether sub-section (5) of section 16 of the Ordinance has authorised the family Court to allow instalments after the passing of the decree. The words “to be paid under a decree passed by it” occurring in the sub-section leave no manner of doubt that the family Court is also authorised to direct payment by instalments as it deems fit even after the passing of the decree. We feel no hesitation therefore to dismiss the first contention of Mr. Qzair Farooq that the family Court can allow instalments only at the time of passing of the decree and not thereafter i.e. during execution proceeding. Mr. Farooq having noticed with us the language of sub-section (5) and the provisions under the general law as referred to above has ultimately veered round the view that it is permissible for the family Court to allow instalments even after the passing of the decree. The difference that we find between the general provisions and those provided in section 16 sub-section (5) is that whereas under the former the power is hedged by certain conditions including one of limitation but under sub-section (5) there is no such condition except that the power should be exercised “as it deems fit” i.e. in exercise of a proper judicial discretion. The power is wider under sub-section (5) and may be used either on application by a party or suo motu so long as the decree remains unsatisfied.

14. As to the second contention of the learned Advocate for the appellant that a family Court can allow instalments only as a trial Court and not as an executing Court, it appears to be an argument in tautology because sub-section (4) of section 16 provides that the decree shall be executed by the Far Court passing it or by such other Family Court to which the decree may be transferred for execution by the Court passing it and in executing such a decree the court to which it is transferred shall have all powers of the Family Court passing the decree as if the decree were passed by it. Since a decree passed under the Ordinance can be executed only in the Family court passing the decree, there is only but one court in which a proceeding under the Ordinance is started and concluded ending in the execution of decree or otherwise as the case may be. When a prayer for instalments is made by the judgment-debtor in course of the execution proceeding he cannot but make it before the family Court which passed the decree (the executing Court being the same). In view of the provisions of sub-section (4) there is no scope for raising the question as to the competence of the Court allowing instalments under sub-section (5). Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow instalments even after passing of the decree is undoubted.

15. We, therefore, entertain no doubt that the question raised in this appeal must be answered in the affirmative and the High Court Division has committed no wrong.

16. Leave was also granted to consider another submission of the appellant that in any view of the matter the family Court ought not to have allowed instalments by its order dated 21-3-92 inasmuch as it had already refused the prayer for instalments earlier by its order dated 9-5-90. The argument is that the Court cannot sit over its own order as if by way of an appeal. Mr. Farooq also argued that the plaintiff would stand to gain if the decretal amount was paid at a time and allowing instalments to the defendant caused prejudice to her.

17. It has been noticed that the defendant respondent took an appeal against the first order dated 9-5-90 and the learned District Judge having dismissed the appeal as not maintainable took a revision to the High Court Division but ultimately did not proceed with the same and instead filed another application before the family Court on 17-3-92 for allowing instalments which was granted.

18. Miah Abdul Gafur, learned Advocate-on-Record for the respondent, submits that the defendant’s first application which was rejected by order dated 9-5-90 was filed under section 16(3)(a) and the second application dated 17-3-92 was under section 16(5) of the Ordinance. The purpose of the first application was different and it was necessary because the appellant-decree-holder started execution under section 16(3)(b) of the Ordinance which was more onerous for the defendant. Mr. Gafur has explained his point by saying that the appellant had maliciously adopted the course under the Code of Criminal Procedure for realising the decretal dues and so the defendant was obliged to file a petition for following the course under the Code of Civil Procedure as provided in section 16(3)(a). Referring to the order of rejection dated 9-5-90, be submits that it is wrong to say that the defendant made the same prayer for allowing instalments after it was rejected by order dated 9-5-90.

19. It is admitted that the decree-holder started the execution case under section 16(3)(b) i.e. she wanted the execution to proceed under the Code of Criminal Procedure, 1898 and an order of arrest was made by the Magistrate. The defendant in his earlier petition under section 16(3)(a) in effect prayed for an order for execution of the decree to be made under the Code of Civil Procedure which was refused on the ground that it was for the decree-holder to choose the procedure for execution of the decree. It will not be fair to say that the defendant was making the same prayer for instalments which was rejected earlier. Even otherwise it is possible that more than one application may be made for allowing instalments if the facts of any particular case justify making of a second application after the first application has been rejected. It is found that before allowing instalments in the present case the family Court directed the respondent to produce from the authority a certificate of his pay and upon furnishing of such certificate the Court allowed his prayer for instalments in exercise of its discretion. There is no reason to think therefore that the discretion has been wrongly exercised in the circumstances of the case. Having regard to the facts as noticed above it will not be correct to say that the family Court sat over its order or that the discretion has been improperly exercised in allowing instalments to the defendant.

The contentions raised by the appellant fail and accordingly the appeal is dismissed without any order as to costs.

Ed.

Source : 49 DLR (AD) (1997) 57

 

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