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Ahmed Pasha Vs. Wajid Unissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 481 and Criminal Revn. Petn. No. 476 of 1982
Judge
Reported in1983CriLJ479
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125, 125(3) and 421; Code of Civil Procedure (CPC), 1908 - Sections 60
AppellantAhmed Pasha
RespondentWajid Unissa and ors.
Appellant AdvocateMohd. Gulam Hussain, Adv.;Additional Public Prosecutor
Respondent AdvocateC.R. Pratap Reddy, Adv.
Excerpt:
.....up to 02.10.1980 - stopped paying from 01.10.1980 to 01.04.1982 - petition for recovery of arrears of maintenance - lower court ordered attachment of salary of petitioner - petitioner contended that warrant for attachment of salary for recovery of arrears of maintenance cannot be issued - as per section 125 (3) magistrate can follow procedure in prescribed in section 421 to recover arrears of maintenance - held, warrant issued for attachment is in accordance with law. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows..........including clerks and the peons is being attached by money lenders or by the banks in execution of money decrees. if the salary is not available for seizure or the person, who gets the salary, cannot be said to have earned his future salary as opined by the learned judges in the above two decisions, the salary should not be available for attachment for money lenders or for the banks even in the execution of a money decree. but section 60 c.p.c. itself provides for attachment of the salary to the extent indicated therein in execution of a money decree or a decree for maintenance. hence the view that the salary cannot be said to have been earned by the person and it cannot, therefore, be available for the seizure, is not in conformity with the provisions of section 60. when a money lender.....
Judgment:

1. This revision is directed against the order of attachment of salary of the petitioner by the Judicial First Class Magistrate, Luxettipet in Crl.M.P. No. 773 of 1982 in M.C. No. 16 of 1978.

2. M.C. No. 16 of 1978 was filed by Respondents 1 and 2 herein for maintenance. The first respondent is the wife of the petitioner and the second respondent is the son of the petitioner. After enquiry the learned Magistrate allowed the petition and granted maintenance at Rs. 50/- for the wife and Rs. 40/- for the son per month. The petitioner has been paying the maintenance as per the orders of the Magistrate in M.C. No. 16 of 1978 up to 2-10-1980 but stopped paying from 2-10-1980 to 2-4-1982 i.e. for a period of 18 months. Hence arrears accrued in a sum of Rs. 1620/-. The wife and the son of the petitioner therefore, filed Crl.M.P. No. 773 of 1982 for the recovery of the arrears. The learned Magistrate issued notice to the petitioner on 1-5-1982 but it was returned unserved. Again on 14-6-1982 fresh notice was issued to the petitioner. This time also the notice was unserved on the petitioner and the same was returned by the process server. The lower Court therefore, passed the order on 24-6-1982 attaching the salary of the petitioner to the extent of Rs. 150/- per month. It is this order that is assailed in this revision.

3. In this case, as stated above, the petitioner fell in arrears since he did not pay the maintenance as granted by the Magistrate from 2-10-1980 to 2-4-1982. When the order of the Magistrate granting maintenance was not complied with for months together what is the remedy The remedy is provided in Section 125(3) Cr.P.C. which reads as follows :

'If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made.'

4. Thus the Magistrate is given the power under section 125(3) to issue a warrant for levying the amount due in the manner provided for levying fines for every breach of the order of the Magistrate. The expression 'in the manner provided for levying fines' makes it clear that the Magistrate can follow the procedure prescribed for levying fines for recovering the arrears of maintenance. Section 421 Cr.P.C. provides for the recovery of fines imposed by the Magistrate. Section 125(3) therefore, empowers the Magistrate to follow the procedure as provided in Section 421 for recovery of the arrears of maintenance, Section 421 provides for the issue of warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender. If that be so, the attachment of salary as ordered by the Magistrate is in accordance with the law.

5. Sri Mohamad Gulam Hussain, the learned counsel for the petitioner, contends that the warrant for attachment of the salary for the purpose of recovery of arrears of maintenance cannot be issued and the impugned order is without jurisdiction. In support of his contention, he relied upon the decision of the Rajasthan High Court in Baldevi v. Ramnath, AIR 1955 Raj 61 : 1955 Cri LJ 621 and the decision of the Goa, Daman Diu J. C's court in Ali Khan v. Hajramabi 1981 Cri LJ 682 (Goa).

6. The decision of the Rajasthan High Court cited above was followed by the Goa, Daman and Diu, J.C's Court. The learned Judges took the view that the future salary of the husband cannot be attached because the future salary is not available for seizure and it does not belong to the husband since he cannot be said to have earned his future salary. They also held that even under Section 421 the salary cannot be attached.

7. With due respect I find myself unable to agree with this view. It is now common practice that the salary of officials including clerks and the peons is being attached by money lenders or by the Banks in execution of money decrees. If the salary is not available for seizure or the person, who gets the salary, cannot be said to have earned his future salary as opined by the learned Judges in the above two decisions, the salary should not be available for attachment for money lenders or for the Banks even in the execution of a money decree. But Section 60 C.P.C. itself provides for attachment of the salary to the extent indicated therein in execution of a money decree or a decree for maintenance. Hence the view that the salary cannot be said to have been earned by the person and it cannot, therefore, be available for the seizure, is not in conformity with the provisions of Section 60. When a money lender or a Bank has got the right to attach the salary of an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under section 125(3). A wife who is entitled to maintenance under section 125 Cr.P.C. and who is also entitled to recover the arrears under section 125(3), cannot be placed worse than a money lender. What is available under section 60 C.P.C. for a maintenance decree-holder, can also be made available under section 125(3) Cr.P.C., for the recovery of arrears of maintenance.

8. The other contention is that an opportunity was not given to the petitioner before passing the order of attachment and that Section 125(3) requires that an opportunity should be given to the petitioner before passing an order under this sub-section. The court issued notices and they were returned unserved due to the evasion of the petitioner. In such a case the lower Court is justified in passing the impugned order. Thus I cannot accept the petitioner's contention.

9. Shri Mohamad Ghulam Hussain contends that the first respondent is undertaking tailoring work and is also working in a beedi factory. These allegations are obviously invented to circumvent maintenance granted against the petitioner. They cannot be considered at this juncture. It is always open to the petitioner to file a petition and prove that the wife is having sufficient means of livelihood and is, therefore, not entitled to maintenance. Since the petitioner has not produced any material except making a wild allegation with regard to the first respondent's earnings, the order of the lower court cannot be set aside.

10. For the aforesaid reasons, the Criminal Revision case is dismissed.

11. Revision dismissed.


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