(1) This is an appeal of the judgment-debtor from the order of the executing Court directing that the maintenance awarded to her under section 488 of the Code of Criminal Procedure is attachable in a decree passed against her for restitution of conjugal rights.
(2) Shiela Rani appellant was married to the respondent Durga Prashad on 6th of May 1956. The parties did not have a smooth married life as the wife felt obliged to make an application for maintenance under section 488 of the Code of Criminal Procedure as maintenance by an order of the criminal Court passed on 17th December 1958. The respondent-husband in his turn filed an application for restitution of conjugal rights on 26th March 1959. This application was allowed and the husband was granted a decree for restitution of conjugal rights on 14th of February 1962.
(3) It is the execution of the decree for restitution of conjugal rights which has given rise to this appeal. Under Order 21 rule 32 of the Code of Civil Procedure a decree for restitution of conjugal rights may be enforced against a person who has willfully failed to obey if ' by the attachment of his property.' The respondent-husband applied for attachment of the amount which was lying deposited in the criminal Court as arrears of maintenance granted to the appellant on 17th of December 1958. The wife's objection to this attachment having been disallowed by the executing Court she has come in appeal here.
(4)The learned counsel for the appellant relies on a Bench Decision of Guha and Bartley JJ. in Giribala Devi v. Nirmalabala Devi, AIR 1935 Cal 578 for the proposition that the decree-holder was seeking to attach the future right of maintenance and this is prohibited under the provisions of the Code of Civil Procedure. Under section 60 the property which is liable to attachment and sale in execution of a decree has been detailed in sub-section (1). There are provisions to this sub-section which enumerate certain items which 'shall not be liable to such attachment or sale.' Clause (n) of this proviso mentions as an exception ' a right to future maintenance'. In the Calcutta case it was held that arrears of maintenance payable under orders of a criminal Court cannot be attached if the right created by the order. The Division Bench adopted the test laid down earlier by Sir Ashutosh Mukherji, J., in Tara Sundari Debi v. Saroda Charan, 12 Cal LJ 146 that the maintenance would not be attachable if it is purely a personal right created by an order awarding it. Now it cannot be disputed that the maintenance granted by the criminal Court was a purely personal right created by the order of the criminal Court and is therefore not liable for attachment. The execution Court before whom this authority was cited distinguished it on the ground that the arrears of maintenance which are sought to be attached do not constitute a right to future maintenance. I am unable to accede to this reasoning. Where the maintenance has not been realised by the person held entitled to it still remains a right of future maintenance has not been realised by the person held entitled to it, it still remains a right of future maintenance and does not become attachable merely because the arrears have not been realised. The Judges of the Calcutta High Court were also concerned with the question of arrears of maintenance which had become payable under orders of the criminal Court and it was never questioned there that they do not fall under clause (n) of the proviso to sub-section (1) of S. 60 of the Code of Civil Procedure. Mention may also be made of a Division Bench judgment of the Saurashtra High Court (Shah C. J. and Baxi J. ) in Kanta Motichand v. Amratlal, AIR 1953 Sau 42. A point was made that the civil proceedings for restitution of conjugal rights put an end to the maintenance proceedings under S. 488 of the Code of Criminal Procedure. It was observed by the Saurashtra High Court (Shah C. J and Baxi J.) in Kanta Motichand v. Amratlal, AIR 1953 Sau 42. A point was made that the civil proceedings for restitution of conjugal rights put an end to the maintenance proceedings under S. 488 of the Code of Criminal Procedure. It was observed by the Saurashtra Court that it cannot be said that the wife is not entitled to have merely because the husband stared civil proceedings almost simultaneously with her in another Court and obtained a decree in his favour before the Magistrate could dispose of the application before him. The two proceedings according to the Saurahtra Court, could have continued contemporaneously. In the present case the order for maintenance has been made by the criminal Court before the proceedings for restitution of conjugal rights were stared at the instance of the husband. It cannot be said that the decree for restitution of conjugal rights put an end to the right of maintenance which had been recognised by an criminal Court in proceedings under S. 488 of the Code of Criminal Procedure. Guha J. in Kunti Bala Dassi v. Nabin Chandra Das, (S) AIR 1955 cal 108 also dealt with a situation where the husband had obtained a decree for restitution of conjugal rights against his wife in whose favour a prior order for maintenance had been passed under S. 488 of the Code of Criminal Procedure. The wife having refused to live with the husband on the ground that he had another wife living with him it was held that the Magistrate was not justified in surrendering his own discretion and canceling the order for maintenance under S. 489(2) Under sub-section (2) of S. 489 of the Code of Criminal Procedure,
'Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court any order made under S. 488 should be cancelled or varied he shall cancel the order or as the case may be vary the same accordingly.' Though it appears at first sight mandatory for the Magistrate to cancel an order under S. 488 should be canceled or varied he shall cancel the order of as the case may be vary the same accordingly.' Though it appears at first sight mandatory for the a competent civil Court has pronounced an order which runs counter to the order for maintenance Guha J. was of the opinion that it was still discretionary with the Magistrate to cancel or vary the order of maintenance. BE that as it amy the respondent-husband did not apply to the criminal Court under sub-section (2) of S. 489 of the Code of Criminal Procedure, and the executing Court had no warrant in my opinion to declare that the maintenance has become attachable on passing of the decree for restitution of conjugal rights.
(5) I am, therefore, of the opinion that the order passed by the executing Court is erroneous and ought to be set aside. This appeal is accordingly allowed and the order of the executing Court holding the maintenance allowance award to the wife to be attachable is set aside. As there is no appearance for the respondent, I would made no order as to costs.
(6) Appeal allowed.