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Jagannath Patra Vs. Purnamashi Saraf and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 31 of 1966
Judge
Reported inAIR1968Ori35; 33(1967)CLT809; 1968CriLJ335
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488(3)
AppellantJagannath Patra
RespondentPurnamashi Saraf and anr.
Respondent AdvocateG. Rath and ;Y. Misra, Advs.
Excerpt:
.....v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - for recovery of the arrears for the period from 5-10-63 to 5-4-65. the learned magistrate issued a warrant for attachment of movable and immovable properties and of the body of jagannath, against this order jagannath filed a revision before the learned sessions judge at bolangir who has made two recommendations thus -(i) that the issue of warrant of arrest before the warrant of attachment and sale of the properties failed to satisfy the arrears was illegal;.....that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due thus the period of limitation is one year any arrear fallinp beyond one year is barred by limitation.4. on the aforesaid analysis, the case must go back to the learned magistrate. he would in the first instance issue warrant ofattachment of the properties for recoveryof arrears of maintenance for a period ofone year preceding the date of application.if the properties attached and sold do notsatisfy the arrears due, it is open to thelearned magistrate to issue a body warrant.(5) the reference is accepted. the orderof the learned magistrate dated 14-10-65 isset aside and he is.....
Judgment:
ORDER

G.K. Misra, J.

1. Purnamasi Saraf and Abhimanyu Saraf, aged 11 and 9 years respectively, got an order of maintenance on 15-10-63 Under Section 488 Cr. P. C. against Jagannath Patra. A revision against that order was dismissed by this Court in 1964. The minors filed an application Under Section 488(3), Cr. P. C. for recovery of the arrears for the period from 5-10-63 to 5-4-65. The learned Magistrate issued a warrant for attachment of movable and immovable properties and of the body of Jagannath, Against this order Jagannath filed a revision before the learned Sessions Judge at Bolangir who has made two recommendations thus --

(i) That the issue of warrant of arrest before the warrant of attachment and sale of the properties failed to satisfy the arrears was illegal; and

(ii) An amount for more than one year was not recoverable.

2. Section 488(3) lays down that 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 manner hereinbefore 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.

It would thus be apparent that in the first instance warrant of attachment of the movable and immovable properties would be issued, the properties would be sold and applied for discharge of the arrear dues, and if on such steps being taken the arrear amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then. The order of the learned Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law

3. The second proviso to Sub-section (3) of Section 488, Cr. P. C. enacts that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due Thus the period of limitation is one year Any arrear fallinp beyond one year is barred by limitation.

4. On the aforesaid analysis, the case must go back to the learned Magistrate. He would in the first instance issue warrant ofattachment of the properties for recoveryof arrears of maintenance for a period ofone year preceding the date of application.If the properties attached and sold do notsatisfy the arrears due, it is open to thelearned Magistrate to issue a body warrant.(5) The reference is accepted. The orderof the learned Magistrate dated 14-10-65 isset aside and he is directed to dispose ofthe case in accordance with law and the observations made above. The case has beenlong delayed. The Magistrate is directed todispose it of as early as possible.


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