R.L. Narasimham, C.J.
1. This is a reference by the Sessions Judge of Sambalpur, recommending the setting aside of an order dated 20th June, 1957 passed by the. Sub-divisional Magistrate, Bonai, attaching the house said to belong to the petitioner, in execution oi an order for maintenance obtained by the opposite party, Lakshmi Dei, against her husband Banamali Sahu.
2. The material facts are as follows. In M. C. No. 7 of 1947-48 opposite party Lakshmi Dei was granted a monthly maintenance of Rs. 10/-recoverable from her husband. On 30th July, 1956 she filed an application under Sub-section (3) of Section 488, Cr. P. C. (M. C. No. 20 of 1956) requesting the Court to realise arrears of maintenance due to her, amounting to Rs. 190/-. In that application she clearly stated that this sum included a sum of Rs. 120/- due to her for the year 1955 in M. C. No. 4 of 1950 which however could not be realised, and that the balance of Rs. 70/- represented the amount dua to her from January to July, 1956.
The Sub-divisional Magistrate, after due notice to the husband of the opposite party issued notice for attachment of the house on 4th September, 1956. The petitioner then filed an objection to the attachment on the ground that the house had been sold to him by Lakshmi Dej's husband on 22nd March, 1956. The learned Sub-divisional Officer, after hearing the parties dismissed the objection petition filed by the petitioner on 20th June, 1957, observing that sale of the house by Banamali Sahu in his favour appeared to be benami, made with a view to defeat the claim of his wife for maintenance. When the matter was taken up in revision before the Sessions Judge, he thought that the order of attachment passed by the Magistrate was illegal on two grounds :
(i) The arrear maintenance related to a period exceeding the limit of one year preceding the date on which the application was made and consequently the claim was barred by virtue of Sub-section (3) of Section 488, Cr. P. C.
(ii) In any case, the Sub-divisional Magistrate was not justified in summarily rejecting the objection filed by the petitioner on mere surmises and he ought to have examined witnesses and come to a finding as to whether the sale in favour of the petitioner by the husband of Lakshmi Dei was benami or not.
3. In my opinion, the reference is misconceived. The learned Sessions Judge apparently seems to have mixed up the dual functions of the Sub-divisional Magistrate, Bonai as a Magistrate on the one hand and ex-officio Munsif on the other. In his capacity as Sub-divisional Magistrate, he passed orders under Sub-section (3), Section 488, Cr. P. C. issuing a warrant for the realization of arrear maintenance.
It is true that a portion of the sum claimed related to a period more than one year preceding: the date on which the application was made. But in that application opposite party Lakshmi Dei clearly stated that that sum had already been claimed by her in M. C. No. 4 of 1956 and that it could not be realised then. It is thus clear that she had sought the help of the Court for realization of the arrear maintenance within the stipulated period of one year from the date on which the sum became due.
It was the inability of the Court to realise the arrears at that time that compelled her to include that sum (due for 1955) also in her subsequent application. The limitation provided in the second pioviso to Sub-section (3) of Section 488, Cr. P. C. should not be so construed as to give a loop-hole for a negligent husband to avoid payment in the first instance and, then, by evading appearance before the Court when the application is made, raise the plea of limitation.
The application made by Lakshmi Dei in M. C. No. 20 of 1956 on 20th July, 1956, should there- fore for all practical purposes be taken as a continuation of the previous M. C. No. 4 of 1956 which was admittedly filed within time. There is a decision of the Rangoon High Court reported in Uhpay Latt v. Ma Fo Byu, 37 Cri LJ 91 (2): (AIR 1935 Rang 407) (A), in support of this view. I am therefore .satisfied that the claim was not barred by limitation and the Sub-divisional Magistrate was justified in issuing a warrant for realization of the arrear maintenance due to the opposite party.
4. The Sub-divisional Magistrate sent the warrant to the Collector for realization of the sum as if it were a fine imposed by a Criminal Court. Sub-section (J) of Section 386, Cr. P. C. says that the warrant may be sent to the Collector of the district authorising him to realise the amount by execution according to civil process against the immovable property of the defaulter, and Sub-section (3) of that section says that the nearest Civil Court may execute that decree.
The explanation of the Sub-divisional Magistrate is that when the warrant was sent back to him by the Collector it was received by him in his capacity as Sub-divisional Officer. He appears to have taken steps to execute the decree as ex-officio Munsif of Bonai. As already pointed out, the Sub-divisional Magistrate functions in a dual capacity -- both as a Magistrate and as a Munsif; and when he proceeded to execute the warrant for attachment, as if he were a civil Court he cannot be said to have functioned as a criminal Court, so as to come within the revisional jurisdiction of this Court, under Section 439, Cr. P, C. He functioned as a civil Court when he overruled the petitioner's objection against the attachment of the house and the remedy if any lies before the appropriate Court under the provisions of the Civil Procedure Code. See Emperor v. Milkha Singh, AIR 1929 Lah 667 (B) and Collector of Peshawar v. Abdul Majid, AIR 1938 Peak 40 (C).
5. I would, therefore, discharge this reference.