Law: Family Courts Act, 1964

Section: 13,5,Sched

Law: Contract Act, 1872

Section: 128

Law: Constitution of Pakistan, 1973

Section: 199

(a) West Pakistan Family Courts Act (XXXV of 1964)--- ----Ss. 13 & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Execution petition---Submission of surety bond---Attachment of property of surety---Scope---Decree holder filed execution petition wherein -debtor was arrested and petitioner, his father submitted surety bond of Rs.1,00,000---Judgment-debtor committed default in payment of decretal amount and Executing Court attached property of surety and ordered the auction of the same---Judgment-debtor appeared in custody and offered to deposit the decretal amount in installments and Executing Court accepted the offer---Judgment-debtor deposited one installment with the court auctioneer---Surety/petitioner prayed for abandonment of the court auction but same was refused---Validity---Judgment-debtor had arranged the surety and Executing Court had accepted the surety bond---Surety was not party to the suit who deposited Rs.1,05,000 with the court auctioneer and fulfilled his obligation, his property could not be auctioned---Contract of surety had provided that in case the -debtor failed to appear before the court the surety would deposit Rs.1,00,000 who had never undertaken or assured that he would pay the decretal amount in case of failure of the -debtor to pay the same---Contract of surety had provided that maximum surety under the contract was Rs.1,00,000---Executing Court had erroneously observed that surety had to pay the entire decretal amount---Order of Trial Court did not find mention that the -debtor would arrange a surety for the payment of the entire decretal amount---Judgment-debtor was to provide a surety amounting to Rs.1,00,000 for balance decretal amount---Impugned order was set aside and order for auctioning the immovable property of surety/petitioner was declared without lawful authority---Constitutional petition was allowed in circumstances. Amanullah Khan v. District Judge and 3 others 2012 CLC 679 and Saleem-ullah v. Abadat Ali Malik and others 2000 CLC 1648 distinguished. (b) Contract Act (IX of 1872)--- ----S. 128---Surety's liability---Scope---Liability of surety…

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