V.D. Bhargava, J.
1. This is an application on behalf of the State filed in execution proceedings. There appears to have been a decree on the basis of the mortgage. Some property was sold. There was an order under Section 15 of the Payment of Wages Act against Ravi Hosiery Factory, who were the mortgagors of some properties of Lakshmi Insurance Co., Ltd., New Delhi opposite party No. 1. The Chief Inspector of Factories representing the State objected to the sale of the property on the ground that since there was a decree under Section 15 of the payment of Wages Act, that amount would get a preference over any other debt. It was, however, contended that it was not open to the Civil Courts to investigate into the claim under Section 15 of the Payment of Wages Act.
2. It appears that there was an order of realisation of Rs. 5,000/- and odd under Section 15 of the Payment of Wages Act as against Ravi Hosiery Factory, whose proprietors are Sri Bhimesh Mehra and Yudhishter Mehra opposite parties Nos. 2 and 3. The amount not having been paid was realisable as a fine under Section 15(5) of the Payment of Wages Act, which provides;
'Any amount directed to be paid under this section may be recovered -- (a) if the authority is a Magistrate, by the authority as if it were a fine imposel by him as Magistrate, and
(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate'.
3. The provisions for realising the fine are contained in Section 386 Cr. P. C. which provides;
1. 'Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -- (a) issue a warrant for the levy of the amount by attachment and sale of any movable Property belonging to the offender;
(b) issue a warrant to the Collector of the District authorising him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter.'
In the present case the amount which is being realised is against immovable property, therefore, Clause (a) will not apply and it would be only Clause (b). If the amount of fine is to be realised by the Magistrate as against the immovable property, he should issue a warrant to the Collector of the District authorising him to realise the amount in execution in accordance with the civil process i. e. he cannot realise this amount himself as is realisable in the case of land-revenue.
But the amount will be deemed to be a decree of a civil court and it can be only realised through the agency of the civil court by attachment of both movable arid immovable property. The execution has really to be by the civil court. I am supported in this case by a Madras decision in S. Kuppuswami Ayyar v. Secretary of State : AIR1929Mad383 and in such cases all the provisions of the C. P. C, relating to the execution of the decree are to apply and, therefore, the claims can be investigated under Order 21 Rule 58 C. P. C.
This is what the learned Civil Judge has done. He has said that it will amount only to a civil debt and he can proceed to decide different claims of different persons under Order 21 Rule 52 C. P. C. He has rightly further held that this cannot take precedence over the secured debt. No provision has been shown under any law in which a fine is to take precedence over the secured debt. So for as the land revenue is concerned there is a specific provision for it.
Simply because it is a claim on behalf of theState as it is realizable as a fine it cannot haveprecedence and be a first charge unless some lawhas declared it so. The view taken by the learnedCivil Judge that it cannot amount to anything greater than a crown debt and even a crown debt cannot take precedence over a secured debt and thathe can investigate the claim is, therefore, correct.I therefore, see no force in this application. Theapplication is, therefore, accordingly rejected withcosts.