2023 C L C 1300 [Link]

caseName=2023L253

2023 C L C 1300
[Lahore (Rawalpindi Bench)]
Before Sadaqat Ali Khan, Mirza Viqas Rauf and Ch. Abdul Aziz, JJ
Mst. AMMAN GUL----Petitioner
Versus
JUDGE FAMILY COURT, RAWALPINDI and 2 others----Respondents
Transfer Application No. 31 of 2022, decided on 15th February, 2023.
(a) Family Courts Act (XXXV of 1964)---
----Ss.10. 11 & 17---Provision of Civil Procedure Code, 1908---Applicability---All provisions of Code of
Civil Procedure, 1908 except Ss.10 & 11, C.P.C. have been ousted to the proceedings before Family
Court in terms of S.17 of Family Courts Act, 1964, but this was only for the prime purpose to avoid
procedural formalities, which may operate as hurdle in speedy and swift decision of disputes brought
before the Court under Family Courts Act, 1964---There is no impediment in the way of Family Court to
adopt procedure provided in Civil Procedure Code, 1908, to foster the justice.
Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321 and Mst. Shabnam Bibi and 3
others v. Khan Badshah and 3 others 2012 MLD 1795 rel.
(b) Civil Procedure Code (V of 1908)---
----[Link]---Execution proceedings---Scope---Execution proceedings are not synonymous to original
proceedings where Court has to make an adjudication of the respective rights of parties, which ultimately
culminates into decree--- In the former case Executing Court ordinarily is not required to involve itself in
determination of intricate questions of fact or law but to proceed in terms of decree for its satisfaction.
(c) Family Courts Act (XXXV of 1964)---
----Ss.13 & 25-A---Civil Procedure Code (V of 1908), S.38---Execution of decree---Transfer of
proceedings---Dispute was with regard to transfer of proceedings to another Court to execute decree
passed by Family Court---Validity---Detailed mechanism for execution of decree has not been provided
in section 13 of Family Courts Act, 1964, nor it caters for all eventualities arising from execution
proceedings--- Family Court and the Civil Court under S.13(4) of Family Courts Act, 1964, have been
placed at the same pedestal for the purpose of execution of decree---In such capacity a Court "Family" or
"Civil" enjoys all powers of Executing Court vested in Part II as well as [Link],C.P.C.---Provision of
S.39, C.P.C., deals with transfer of decree which empowers the Court which passed a decree to send it for
execution to another Court, on the application of decree holder---Once decree was passed by Family
Court that had become executable in terms of S. 13 of Family Courts Act, 1964 and in case of any
hindrance to the same, the Executing Court could adopt any of the mode provided for execution of decree
in C.P.C.---High Court directed the applicants to move respective Executing Courts for transfer of
execution proceedings / petitions---Application was allowed accordingly.
Mian Muhammad Arshad v. Saba Gul and 5 others 2022 MLD 1280; Sawera Ikram v. Amir Naveed
PLD 2022 Lah. 600; Mst. Samrana Nawaz and others v. M.C.B. Bank Ltd. and others PLD 2021 SC 581;
Mst. Kulsoom Rasheed v. Noman Aslam PLD 2021 SC 579 and Muhammad Khalil v. Mst. Zahida
Perveen and others PLD 1991 Lah. 51 ref.
Majad Ali, Butt for Applicant (in Transfer Application No.31 of 2022).
Ex-parte for Respondents (in Transfer Application No.31 of 2022).
Muhammad Shoaib for Applicant (in Transfer Application No.10 of 2022).

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Nemo. for Respondent (in Transfer Application No.10 of 2022).

Amir Akhtar for Applicant (in Transfer Application No.26 of 2022).
Nemo. for Respondents (in Transfer Application No.26 of 2022).
Amir Shahzad Raja for Applicant (in Transfer Application No.27 of 2022).
Ex-parte. for Respondent (in Transfer Application No.27 of 2022).
Mudassar Bashir Awan for Applicants (in Transfer Application No.29 of 2022).
Nemo. for Respondent (in Transfer Application No.29 of 2022).
Raja Mohsin Riaz for Applicants (in Transfer Application No.30 of 2022).
Ex-parte for Respondent (in Transfer Application No.30 of 2022).
Syed Amir Hussain Shah for Applicant (in Transfer Application No.32 of 2022).
Nemo. for Respondent (in Transfer Application No.32 of 2022).
Qazi Hafeez ur Rehman for Applicants (in Transfer Application No.33 of 2022).
Nemo. for Respondents (in Transfer Application No.33 of 2022).
Syed Mansoor Hussain Bukhari for Applicants (in Transfer Application No.34 of 2022).
Nemo. for Respondent (in Transfer Application No.34 of 2022).
Ajam Naz Malik, Farhana Ambreen, Sidra Sheikh and Tayyab Bilal for Applicants (in Transfer
Application No.35 of 2022).
Nemo. for Respondents (in Transfer Application No.35 of 2022).
Applicant No.1 in person (in Transfer Application No.43-C of 2022).
Nemo. for Respondents (in Transfer Application No.43-C of 2022).
Applicant in person (in Transfer Application No.46 of 2022).
Nemo. for Respondents (in Transfer Application No.46 of 2022).
Syed Aun Muhammad Rizvi and Aneeque Zia for Applicant (in Transfer Application No.47 of 2022).
Nemo. for Respondents (in Transfer Application No.47 of 2022).
Mansoor Azam for Applicants (in Transfer Application No.51 of 2022).
Nemo. for Respondents (in Transfer Application No.51 of 2022).
Muhammad Tanveer Mughal for Applicants (in Transfer Application No.52 of 2022).
Nemo. for Respondents (in Transfer Application No.52 of 2022).
Anwar ul Haq Shah and Nauman Qadir for Applicant (in Transfer Application No.53 of 2022).
Nemo. for Respondent (in Transfer Application No.53 of 2022).
Syed Bilal ud Din Bukhari and Bilal Akbar Laghari for Applicants (in Transfer Application No.54 of
2022).
Nemo. for Respondents (in Transfer Application No.54 of 2022).
Syed Wajid Hussain Shah and Syed Muhammad Mushtaq Naqvi for Applicants (in Transfer
Application No.57 of 2022).
Nemo. for Respondent (in Transfer Application No.57 of 2022).

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Ch. Muhammad Alam Bhangoo for Applicant (in Transfer Application No.58 of 2022).
Nemo. for Respondent (in Transfer Application No.58 of 2022).
Osama Shahid Khawaja for Applicants (in Transfer Application No.03-C of 2023).
Nemo. for Respondent (in Transfer Application No.03-C of 2023).
Ms. Rabia Ishaque Hanjra for Applicants (in Transfer Application No.08-C of 2023).
Nemo. for Respondent (in Transfer Application No.08-C of 2023).
Date of hearing: 15th February, 2023.
JUDGMENT
MIRZA VIQAS RAUF, J.---By way of this single judgment we intend to decide the title application
as well as following applications :-

Sr. No. Case Number Particulars

1 Transfer Application No.10 Mst. Bahar Hamid v. Abdul Majid
of 2022
2 Transfer Application No.26 Mst. Zahida Parveen v. Ahsan Riaz and
of 2022 others.
3 Transfer Application No.27 Muneeba Shaheen v. Ali Hassan
of 2022
4 Transfer Application No.29 Afshan Omer and others v. Muhammad
of 2022 Farooq
5 Transfer Application No.30 Mst. Misbah Abid others v. Ramzan Ali
of 2022
6 Transfer Application No.32 Mst. Nazia Mumtaz v. Muhammad Danish
of 2022 Munir
7 Transfer Application No.33 Mst. Mobeen Akbar and others v. Qaisar
of 2022 Mehmood and others
8 Transfer Application No.34 Sana Nazeer and others v. Usama Bin
of 2022 Ahmed
9 Transfer Application No.35 Syeda Saima Batool and others v Syed
of 2022 Jahanzaib Ali Shah
10 Transfer Application Mst. Fouzia Jabeen v. Muneeb Ahmed Khan
No.43-C of 2022
11 Transfer Application No.46 Hafiza Shabnam Bashir v. Muhammad
of 2022 Anjum and others
12 Transfer Application No.47 Mst. Isra Jabeen and others v. Muhammad
of 2022 Naveed Younas Awan
13 Transfer Application No.51 Mst. Syeda Nafisa Gul and others v. Syed
of 2022 Haider Ali Shah and others
14 Transfer Application No.52 Mst. Shehzadi and others v. Naveed Ahmed
of 2022 Shah and others
15 Transfer Application No.53 Mst. Nargis Shaheen v. Imran Akram
of 2022
16 Transfer Application No.54 Sara Gurchani and others v. The Learned
of 2022 Family Judge/Executing Court, Rawalpindi
and others

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17 Transfer Application No.57 Mst. Farhat Shaheen and others v. Zulfiqar

of 2022 Ali
18 Transfer Application No.58 Mst. Saba Rafique v. Muzamil Hussain
of 2022
19 Transfer Application Mst. Nadia Parveen and others v.
No.03-C of 2023 Muhammad Iftikhar
20 Transfer Application Wajeha Irum and others v. Muhammad
No.08-C of 2023 Umair Nazir

as all these applications canvass common questions of facts and law.

2. The applicants herein are seeking transfer of execution petitions pending before different learned
Family Courts in pursuance of decrees passed in the suits instituted under the Family Courts Act, 1964.
The question for resolution before us is relatable to mode of transfer/entrustment of the execution
petition in case where the judgment debtor does not reside or hold property in the territorial jurisdiction
of the Family Court which passed the decree.
3. We have noticed that matter under consideration was previously resolved by a learned Single Bench
of this Court in Mian Muhammad Arshad v. Saba Gul and 5 others (2022 MLD 1280) with the following
observations:-
"9. Resultantly, instant petition is allowed and impugned order dated 08.04.2021 and judgment dated
16.04.2021 are declared to be illegal and without lawful authority to the extent that whatever
transfer has been made, and record sent to learned Executing Court at Faisalabad, same shall be
deemed to have been transferred under Section 25-A of the Act of 1964 by this Court today.
Learned Executing Court at Faisalabad is directed to proceed in the matter for satisfaction of the
decree in accordance with law. In future, execution proceedings / execution petition, arising out of
decree passed by learned Judge Family Court, would be transferred keeping in view the spirit of
Section 25-A of the Act of 1964 as well as observations recorded hereinabove. Copy of this
judgment be sent to all District and Sessions Judges in the Punjab for its further circulation
amongst all Judicial Officers."
In a latter case Sawera Ikram v. Amir Naveed (PLD 2022 Lahore 600) another learned Single Bench of
this Court, however, has adopted some other view. The relevant extract from the same is reproduced
below:-
"6. Concluding the above discussion and observations, the following directions are issued to be
followed by the District Judges of the Punjab and the Family Courts in future:-
1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or
dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered
to, which provides that, 'Where a decree relates to the payment of money and the decretal amount
is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the
Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the
decree-holder.'
2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils,
as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge
Family Court will be filed and executed/satisfied in accordance with law by adopting all measures
in this regard.
3. In case the judgment debtor resides in some other District and owns property, precept will be
transmitted for attachment purposes and further proceedings will be taken in accordance with
law."

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We feel no cavil to observe here that in presence of judgment in the case of Mian Muhammad Arshad v.
Saba Gul and 5 others (2022 MLD 1280) the latter Bench who adopted different view in the case of
[Sawera Ikram v. Amir Naveed (PLD 2022 Lahore 600)] should have referred the matter to the Hon'ble
Chief Justice for constitution of Larger Bench in case of difference of opinion but it appears that
judgment in the case of Mian Muhammad Arshad supra was not brought in the notice of later learned
Bench. Guidance in this respect can be sought from Mst. Samrana Nawaz and others v. M.C.B. Bank Ltd.
and others (PLD 2021 Supreme Court 581). The relevant extract from the same is reproduced below:-
"7. We are, however, bound by the judgment delivered by a Bench of co-equal strength, i.e., a three
member Bench, in the said case and therefore cannot hold otherwise. It is now a well-established
principle of practice and procedure of this Court that the earlier judgment of a Bench of this Court
is binding not only upon the Benches of smaller numeric strength but also upon the Benches of
coequal strength; a Bench of co-equal strength cannot deviate from the view held by an earlier
Bench, and if a contrary view has to be taken, then the proper course is to request the Hon'ble
Chief Justice for constitution of a larger Bench to reconsider the earlier view. For, the law
declared by this Court should be clear, certain and consistent, as it is binding on all other courts of
the country, under Article 189 of the Constitution of Pakistan, 1973. The doctrine of binding
precedent promotes certainty and consistency in judicial decisions, and ensures an organic and
systematic development of the law.
8. It would be important to mention here that our learned brother, Justice Umar Ata Bandial, was a
member of the three member Bench that decided the case of Habib and Company (supra) and was
also the member, and author of the order, of the two member Bench that granted leave in C.P.
No.756-L of 2020 (now numbered as C.A. 364-L of 2020) to consider the question under
discussion. This shows that his lordship also doubted the correctness of the view expressed in the
said case and deemed it proper to re-consider the same. The two-Member Bench that granted the
leave, however, did not make a request to the Hon'ble Chief Justice for constitution of a larger
Bench to reconsider the question, for a smaller Bench cannot request for the constitution of a
larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a
Bench of co-equal strength can make such a request. As a judgment of a larger Bench is binding
on the smaller Benches, judicial discipline and propriety demand that a two member Bench should
follow decision of a three member Bench, and if a two member Bench concludes that an earlier
judgment of a three member Bench is so incorrect that in no circumstances can it be followed, the
proper course for it is to set out the reasons why it could not agree with the judgment of the three
member Bench and to refer the matter to the Hon'ble Chief Justice for constitution of a three
member Bench. If the three member Bench also comes to the conclusion that the earlier judgment
of a three member Bench is not correct, then the reference of the matter to a five member larger
Bench is justified. A two member Bench cannot jump over a three member Bench and directly ask
for constitution of a Bench larger than three member Bench, to review the principle of law
declared by that Bench.
9. In these circumstances, we are of the opinion that only a Bench larger than a three member Bench
can reconsider the question as to the interpretation of the second proviso to Rule 90 of Order XXI
of C.P.C, and revisit (if found necessary) the view expressed by a three member Bench in the case
of Habib and Company v. MCB (PLD 2020 SC 227). We, therefore, direct the office to place the
matter before the Hon'ble Chief Justice of Pakistan for appropriate order."
4. The above clearly amounts to a serious disparity and conflict between views of two learned Single
Benches, so in order to resolve the matter in issue office was directed to place the same before the
Hon'ble Chief Justice for constitution of the Larger Bench. In the wake of above, all these applications
are now before us by the orders of the Hon'ble Chief Justice, with a moot question as to "how the
execution proceedings/petitions pending before learned Judge Family Court can be transferred to some
other place for the satisfaction of decree."

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5. Though in these applications there are respondents as well. In some of the cases notice(s) was/were
though issued to the respondent(s) whereas in some of the applications, notices have not been issued but
we are mindful of the fact that any decision in these proceedings would not cause any prejudice to them,
so we opted to proceed with the matter in their absence. To this effect we are also fortified with the
judgment of the Hon'ble Apex Court in the case of Mst. Kulsoom Rasheed v. Noman Aslam (PLD 2021
Supreme Court 579).
6. We have heard learned counsel for the applicants at considerable length and perused the record.
7. Family Courts were established after the promulgation of West Pakistan Family Courts (Act XXXV
of 1964) (hereinafter referred to as "Act, 1964") for a specific purpose and object, so as to ensure
expeditious settlement and resolution of disputes relating to marriage and family affairs as well as the
matters connected therewith, which is even evident from the preamble of the Act ibid. The prime object
of the "Act, 1964" appears to be nothing but to protect weaker and vulnerable segments of the society i.e.
woman and children and to extend every possible convenience in the process of resolution of disputes.
This was the reason that Section 12-A which was though initially not part of the "Act, 1964" but was
introduced through Ordinance LV of 2002, whereby Family Courts have been bound down to decide the
cases within six months from the date of institution.
8. Adverting to the core issue it is observed that Section 13 of the "Act, 1964" deals with the
enforcement of decrees of the Family Court, which reads as under :-
"S. 13. Enforcement of decrees.- (1) The Family Court shall pass a decree in such form and in such
manner as may be prescribed, and shall enter its particulars in the prescribed register.
(2) If any money is paid or any property is delivered in the presence of the Family Court, in
satisfaction of the decree, it shall enter the fact of payment or the delivery of property, as the case
may be, in the aforesaid register.
(3) Where a decree relates to the payment of money and the decretal amount is not paid within time
specified by the Court not exceeding thirty days, the same shall, if the Court so directs be
recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.
(4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District
Judge may, by special or general order, direct.
(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by
it be paid in such installments as it deems fit.
(Underlining supplied for emphasis)
9. The foremost question before us is "whether Family Court is entirely a different entity or it has
some nexus with Civil Court." Though from the bare reading of sub-section (4) of section 13 it clearly
manifests that a Civil Court is at par with the Family Court at-least for the purpose of execution of the
decree but this perhaps would not be sufficient enough to lay the issue at rest. In this regard we would
like to refer Section 6 of "Act, 1964", whereby the supervision of a Family Court has been given to
learned District Judge as that of Civil Court in the respect of district. Reliance to this effect can be placed
on Muhammad Khalil v. Mst. Zahida Perveen and others (PLD 1991 Lahore 51). The relevant extract
from the same is reproduced below:-
"5 ..The question as to whether the Family Court is a Court also does not present any difficulty.
Section 3 of the Punjab Family Courts Act 1964 empowers the Government to establish Family
Courts and to appoint a Judge for each of such Courts. It is the thus obvious that the Family Court
is a Court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and
not a persona designate. This view finds support in the judgment by this Court in Mst. Gaman v.
Taj Din PLD 1968 Lahore 987.

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The next question which arises is whether the cases before the Family Courts are of civil nature. It
was observed by the Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner,
Rawalpindi and other PLD 1970 SC 1 that:--
"In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are
the questions raised and decided in the proceeding. If the proceeding involves the assertion or
enforcement of a civil right, it is a civil proceeding."
Undoubtedly, the rights which are adjudicated upon by the Family Courts are civil rights. In Mirza
Daud Baig v. Additional District Judge, Gujranwala and others 1987 S C M R 1161, it was
observed that "Family Court is a Civil Court in every sense despite the exclusion of the Code of
Civil Procedure and the Evidence Act, 1872 in their application to proceedings before such a
Court". Similar view was taken by a Division Bench of this Court in Muhammad Anwar Khan v.
Additional District Judge, Rawalpindi etc. P L D 1978 Lahore 716, wherein it was laid down that
the Family Court was a Civil Court notwithstanding having been created by a special statute and
mentioned in the Act as distinct from Civil Court."
10. There is no cavil that applicability of all the provisions of the Code of Civil Procedure (V of 1908)
(hereinafter referred to as "C.P.C.") except Sections 10 and 11 have been ousted to the proceedings
before the Family Court in terms of Section 17 of the "Act, 1964" but this was only for the prime purpose
to avoid procedural formalities, which may operate as hurdle in the speedy and swift decision of disputes
brought before the court under the "Act, 1964". At the same time we feel no hesitation to observe that
there is no impediment in the way of Family Court to adopt the procedure provided in the "C.P.C." to
foster the justice. Reference to the above effect can be made to Haji Muhammad Nawaz v. Samina
Kanwal and others (2017 SCMR 321) and Mst. Shabnam Bibi and 3 others v. Khan Badshah and 3 others
(2012 MLD 1795).
11. In order to understand the issue in more convenient way, we can advert to the West Pakistan
Family Courts Rules, 1965 (hereinafter referred to as "Rules, 1965") which were framed to carry out the
purpose of the "Act, 1964". Rule 3 ordains that courts of the District Judge, the Additional District
Judge, the Civil Judge, the President of the Majlis-e-Shoora Kalat, and the Qazi appointed under the
Dastur-ul-Amal diwani Riasat Kalat, shall be the Family Courts for the purposes of the Act. Rule 7 is
more pertinent, which is reproduced below for the purpose of ease of reference :-
"7. Suits triable under the Act shall be instituted in, and be heard and tried by, the Court of the Civil
Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court,
such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the
Additional District Judge."
From the bare perusal of above rule, it is clearly evident that there is no mark distinction between a
Family Court and the Civil Court. Furthermore Rules 15 to 21 of the "Rules, 1965" eliminates any
element of distinction between a Family Court and Civil Court for the purpose of registering of cases,
decrees, orders, etc. which are reproduced below :-
"15. When a plaint has been filed, its particulars shall be entered in a register to be kept in the form
prescribed for Civil Suits under the Code of Civil Procedure, 1908.
16. In every suit, on passing the judgment, a decree shall be drawn up in Form I and shall be signed by
the presiding Judge. The decree shall bear the seal of the Court.
17. The Court shall maintain a register of decrees and orders in the form prescribed for decrees and
orders under the Code of Civil Procedure, 1908.
18. Whenever any fine is paid under section 15 or section 16 or money or property is deposited with
or realized by the Court under the Act or these rules, a receipt shall be given in Form II which
shall be serially numbered and the counterfoil thereof shall be kept in the Court.

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19. All fines, monies, or property deposited or realized and disbursed by the Court shall be entered in
a register in Form III.
20. Where the Court receives any amount payable to a party it shall cause a notice thereof to be served
on the party entitled to receive it and shall pay it to the party concerned within four days, so far as
may be of his applying therefor.
21. The records of the Court, including its registers, shall be preserved for such period as is provided
under the rules of the High Court applicable to Civil Courts."
12. We have noticed that in the case of Mian Muhammad Arshad supra learned Single Bench while
dealing with the issue rested findings while being influenced with the plenary language of Section 25-A
of the "Act, 1964" generally and more particularly word "proceedings" used therein. As we have already
observed that there is no notable difference between Family Court and Civil Court, so general procedure
for both the courts would almost remain the same until something is specifically barred or amounts to
cause a serious prejudice to any of the party.
13. Section 24 of "C.P.C." is almost similar and akin to Section 25-A of the "Act, 1964", so both the
Sections are reproduced below for comparative analysis :-
"24. General power of transfer and withdrawal.--(1) On the application of any of the parties and after
notice to the parties and after hearing such of them as desire to be heard, or of its own motion
without such notice, the High Court or the District Court may at any stage
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same ; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or
dispose of the same ; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court
which thereafter tries such suit may, subject to any special directions in the case of an order of
transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of' this section, Courts of Additional and Assistant Judges shall be deemed to
subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small
Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes."
"S. 25-A. Transfer of cases.-- (1) Notwithstanding anything contained in any law the High Court may,
either on the application of any party or of its own accord, by an order in writing-
(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in
the same district or from a Family Court of one district to a Family Court of another district; and
(b) transfer any appeal or proceeding under this Act, from the District Court of one district to the
District Court of another district.
(2) A District Court may, either on the application of any party or of its own accord, by an order in
writing, transfer any suit or proceeding under this Act from one Family Court to another Family
Court in a district or to itself and dispose it of as a Family Court.
(2a) Where a Family Court remains vacant or the presiding officer remains on leave or absent for any

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reason, except due to vacations, for more than thirty days a District Court may, either on the
application of any party or of its own accord, by order in writing, transfer any suit or proceeding
from such Family Court to another Family Court in a District or to itself and disposed it of as a
Family Court.
(2b) On the application of any of the parties and after notice to the parties and after hearing such of
them as desire to be heard, or of its own motion without such notice, the Supreme Court may at
any stage transfer any suit, appeal or other proceedings under this Act pending before a Court in
one Province to a Court in another Province, competent to try or dispose of the same.
(3) Any Court to which a suit, appeal or proceeding is transferred under the preceding subsections,
shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the
manner as if it were instituted or filed before it:
Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before
the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing directs
otherwise."
(Underlining supplied for emphasis)
The above referred both the provisions deal with transfer, entrustment or withdrawal of the proceedings
from one court to another and such powers in the case of former provision vest with High Court or the
District Court whereas in the latter it falls within the domain of the High Court and the Hon'ble Supreme
Court. The scheme and object of both the provisions is, however, seems to be same. If we take into
account the principles in the case of Mian Muhammad Arshad v. Saba Gul and 5 others (2022 MLD
1280) that in presence of Section 13 of "Act, 1964", for the transfer of any proceeding the resort should
be made to Section 25-A of the Act ibid then on the same analogy for seeking transfer of the proceedings
under the "C.P.C.", Section 24 can only be pressed, leaving the provisions contained in Part II of Order
XXI of "C.P.C." dealing with the execution petitions/proceedings redundant.
14. Needless to observe that execution proceedings are not synonymous to the original proceedings
where the court has to make an adjudication of the respective rights of the parties, which ultimately
culminates into decree. In the former case the executing court ordinarily is not required to involve itself
in the determination of intricate questions of fact or law but to proceed in terms of the decree for its
satisfaction.
15. Part II of "C.P.C." deals with the execution and it provides a detailed mechanism for the execution
of decree passed by a court. Section 38 of the "C.P.C." lays down that a decree may be executed either by
the court which passed it, or by the court to which it is sent for execution. We are mindful of the fact that
Section 13 of the "Act, 1964" neither provides detailed mechanism for the execution of decree nor caters
all the eventualities arising from the execution proceedings. Sub-section (4) of Section 13 of "Act, 1964"
places the Family Court and the Civil Court at the same pedestal for the purpose of execution of decree,
so in that capacity a court "Family" or "Civil" enjoys all powers of the executing court vested in Part II
as well as Order XXI of the "C.P.C.". Section 39 of the "C.P.C." deals with the transfer of decree which
empowers the court who passed a decree to send it for execution to another court, on the application of
the decree holder. We deem it appropriate to reiterate that once a decree is passed by the Family Court
that becomes executable in terms of Section 13 and in case of any hindrance to the same, the learned
executing court can adopt any of the mode provided for the execution of the decree in the "C.P.C.".
16. For the foregoing reasons this application as well as all connected applications seeking transfer of
execution proceedings are disposed of accordingly leaving the applicants to move the respective
executing courts for the transfer of execution proceedings/petitions who shall then proceed with the same
in the light of observations recorded hereinabove.
17. Before parting we deem it apposite to direct the office to circulate the copy of this judgment to all

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2023 C L C 1300 [Link]

the learned District Judges in the Province of Punjab.

MH/A-33/L Order accordingly.
;

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