1. This is a reference made by the learned Sessions Judge of Agra recommending that an order passed by a Bench of Magistrates on 18th August 1937 be set aside. The Magistrates passed an order against Shyama Charan under the provisions of Section 488(3), Criminal P.C., that he should be sentenced to simple imprisonment for a period of six months or until payment was sooner made of a maintenance allowance due for six months. The learned Sessions Judge has referred the case to this Court because it appears to him that Shyama Charan is protected from arrest or detention under the provisions of Section 31, Provincial Insolvency Act, he having been adjudged insolvent and having obtained a protection order from the Insolvency Court. The learned Judge has based his conclusion upon the fact that a maintenance allowance is a debt provable under the Act. It seems to me that that is not the real question which has to be decided. The question is whether the protection order applies to arrest or detention under the orders of a Criminal Court. I have been referred to the decision of a learned Judge of the Calcutta High Court in the case in Tokee Bibee v. Abdool Khan (1880) 5 Cal. 536 and the case in Half-hide v. Half-hide : AIR1924Cal230 With due respect to the learned Judges who decided those cases, I do not think that the term arrest or detention used in Section 31 Provincial Insolvency Act can include arrest in execution of a Criminal Court process or detention under a sentence of imprisonment passed' by a Criminal Court.
2. I think it is clear that arrest or detention must mean arrest or detention in pursuance of an order of a Civil Court passed in execution of a decree of such Court. An order passed by a Magistrate lunder Section 488(3), Criminal P.C. for the imprisonment of a person who fails to pay a maintenance allowance is a sentence of imprisonment. It may be that it is intended to enforce the payment of a debt but that is not to my mind the real point at issue. A person who was sentenced to a fine and in default to imprisonment could not escape imprisonment under a protection order passed by an Insolvency Court. I am of the opinion therefore that the protection order in favour of the applicant does not protect him from arrest under a warrant issued by a Criminal Court or detention in accordance with a sentence of imprisonment passed by such Court.
3. It has also been urged that the mere fact that the applicant has been adjudicated an insolvent shows that he is unable to pay for the maintenance of his wife and that that constitutes sufficient cause for nonpayment. Here again I am unable to agree. Learned Counsel has suggested that the whole of the insolvent's property vests in the receiver and there is nothing left out of which he can maintain his wife. This argument overlooks the fact that the property of the insolvent which vests in the receiver does not include any property which is exempted by the Code of Civil Procedure, 1908 from liability to attachment and sale in execution of a decree.
4. Under the provisions of Section 60, Civil P.C., as now enacted, the salary to the extent of the first hundred rupees and one-half of the remainder of such salary is exempt from attachment. The applicant 'would therefore if he is prepared to do work and earn salary, be in a position to support his wife. In these circumstances, I see no reason to interfere with the order of the learned Bench of Magistrates. I reject the reference and direct that the papers be returned to the Court below.