Decided on October 22,1982

JANA Appellant
Gh Rasool Sheikh Respondents


- (1.) THIS revision is directed against a order dated 19 -9 -1981 passed by the District Judge, Badgam remanding an execution matter for further proceedings. The execution related to a decree for restitution of conjugal rights. According to the terms of the decree the husband was required to go and reside with his wife in her parental house. He moved an application for execution on the ground that much though he wanted, he was not granted any access to her house by his wife. The trial court dismissed the. execution application on the ground that the judgment debtor being a lady, she could not be sent to civil prison, and that according to the statement made before it by the decree holder and his lawyer, she had no property which could be attached. In appeal the District Judge has strangely enough taken the view that the executing court should have recorded the statement of the decree holder or of his counsel before acting on the statement that the judgment debtor had no property. This is a very peculiar view, which has no foundation in law. The District Judge should remember that the statement made at the bar is as good if it were a statement made in writing. It was however, urged before me that the decree holder had filed an affidavit before the District Judge saying that he -, had never in fact made any such statement. The affidavit is, however, of no value. I say so, because the appeal was directed against something which was stated in the judgment and so long as the Judge had not been made a party in person, the affidavit carried no value with it Curiously enough his counsel has not come forward to support the decree holder even before the District Judge. That makes the things all the remanding more worse for him. Accordingly the District Judge was not justified in remaining the execution matter on this point.
(2.) THERE is, however, another point on which the District court has ordered the remand. That concerns the investigation as regard the question whether the wife has really refused to comply with the decree. The court has passed this order on the premises that the executing court has not made any such investigation. But such investigation can be useful only if it were found that the judgment debtor had any property. For, if as a result of investigation, it is found that she has refused to comply with the decree, it is her property which alone can be attached and if she has none as already held, there is no point in asking the executing court to conduct the desired investigation. Such investigation would be an exercise in futility. In the circumstances, the order of the District Judge is not sustainable in law and must be set aside as a whole Allowing this revision petition, I set aside the order of the District Judge and restore that of the executing court. There shall be no order as to costs,
(3.) THIS order will not preclude the decree holder from seeking the execution of the decree at some subsequent stage when the judgment debtor acquires property and that the decree holder is in law entitled to put the decree in execution again.;

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