Liability of Surety in Execution of Family Court Judgement

This constitutional petition was filed under Article 199 of the Constitution of Pakistan by Masood-ul-Hassan, challenging the appellate court's order dated 05.03.2022. The order directed the executing court to proceed with the execution of a decree for maintenance allowance and dowry articles, which had been previously granted ex-parte against Muhammad Nizam (Respondent No. 5) and Muhammad Nadeem (Respondent No. 6).

Key Issues:

Respondents No. 2 to 4 filed a suit on 20.11.2014 for recovery of maintenance and dowry articles against Respondents No. 5 and 6. The suit was decreed ex-parte on 29.06.2015 due to the non-appearance and failure of the defendants to cross-examine the plaintiffs' witnesses. The decree included maintenance allowances of Rs. 2,000 per month for the wife (Respondent No. 2) and children (Respondents No. 3 and 4) from the date of the suit until the end of their legal entitlement, and Rs. 200,000 as the value of dowry articles.

Execution and Legal Complications: An execution petition was filed on 24.07.2015. Due to non-compliance by the judgment debtors (Respondents No. 5 and 6), arrest warrants were issued. Respondent No. 5 was arrested but subsequently released on 03.11.2015 upon submission of a surety bond worth Rs. 400,000 by the petitioner, Masood-ul-Hassan. Despite multiple legal maneuvers, including the dismissal of an application to set aside the ex-parte judgment, the decree remained unsatisfied, leading to further arrests and legal proceedings.

Court's Analysis: The trial court's decree was ambiguous regarding whether both Respondents No. 5 and 6 were jointly and severally liable for the maintenance and dowry amounts. The ambiguity led to varied interpretations and subsequent releases of Respondent No. 5 from jail, considering his old age and financial incapacity. The appellate court, however, reversed an order of the executing court that had discharged the petitioner from his surety obligations, holding him responsible for the remaining decretal amount based on his previous statements and affidavits promising payment.

Conclusion: The Lahore High Court reviewed the extent of the petitioner’s surety obligations and found that he was only liable up to the amount explicitly stated in his surety bond (Rs. 400,000). The petitioner had already paid this amount in various installments. The court noted that a surety's liability is strictly limited to the terms of the surety bond and cannot be extended beyond what was expressly undertaken. Consequently, the High Court set aside the appellate court's order and restored the executing court's decision, discharging the petitioner from further liability beyond the Rs. 400,000 he had guaranteed and paid.

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