Jai Singh Sekhon, J.
1. Through this petition filed Under Section 482 of the Code of Criminal Procedure, the petitioner seeks quashment of the order dated 20.7.1988 of the Judicial Magistrate 1st Class, Mansa and the order dated 5.4.1989 of the Sessions Judge, Bhatinda, inter-alia, on the ground that the Magistrate having not resorted to the realisation of the arrears of maintenance allowance by attachment and sale of the property of the petitioner as envisaged . Under Section 125(3) of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code, the impugned order of confining the petitioner to civil prison in liew of arrears of maintenance allowance was illegal and void in the eye of law.
2. The fact of the case are that in proceedings Under Section 125 of the Code, Judicial Magistrate 1st Class, Mansa, vide his order dated 3.10.1983 awarded maintenance allowance to the tune of Rs. 200/- per month to Smt. Jass Kaur wife of Sethi Singh petitioner and at the rate of Rs. 50/- each to Mit Kaur and Rani, minor daughters with effect from 27.1.1982, the date of filing application Sethi Singh failed to pay arrears of maintenance allowance upon which Smt. Jass Kaur on behalf of herself and on behalf of two minor daughters filed a petition for execution of the above referred order regarding arrears of maintenance allowance from 27.1.1982 to 26.11.1983. Notice of this application was issued to Sethi Singh who refused to accept service on 1.2.1984. Thereafter warrants of attachment of his property were issued on 18.3.1985, 17.5.1985, 25.7.1985 and 25.9.1985.
3. The execution of these warrants was resisted by Sethi Singh and other members of his family on 17.8.1985 and 27.10.1985. The bailiff attached to the Court of Sub-Judge 1st Class, Dawali, executing these warrants then sought the police help for execution of these warrants. Thereafter, warrants of attachment of the property were issued for 16.1.1986, 7.2.1986, 15.3.1986, 26.4.1986,26.5.1986,26.7.1986,26.9.1986, 25.10.1986. 13.12.1986, 23.1.1987, 3.3.1987, 6.6.1987 and 6.7.1987. On 9.4.1986, Smt. Jass Kaur filed an application that in order to avoid the realisation of the maintenance allowance, her husband Sethi Singh had alienated his entire property. The Trial Court vide order dated 10.4.1986 issued a conditional warrants of arrest of the petitioner. On 13.3.1987, Smt. Jass Kaur filed an affidavit to the effect that her husband owns a tractor along with his brothers and the same could not be attached and that the amount be got realised from her husband by sending him to jail. It appears that Sethi Singh was sent to jail since 16.3.1988, but no steps were taken Under Section 421 of the Code for realisation of the arrears of maintenance allowance. Accordingly, the learned Magistrate vide impugned order dated 20.7.1988, directed the petitioner to undergo simple imprisonment for one year and ten months for arrears of similar period from 27.1.1982 to 26.11.1983 with the direction that he should be released forthwith on deposit of the maintenance allowance.
4. The petitioner then filed revision petition before the learned Sessions Judge, Bhatinda, which was dismissed on 5.4.1989 in the absence of the Counsel for the petitioner Sethi Singh by holding that there was no illegality or infirmity in the impugned order of the Magistrate. Mr. R.K. Battas, the learned Counsel for Sethi Singh petitioner, contends that Under Section 125(3) of the Code, a person could be imprisoned for arrears of maintenance allowance if some amount remains unpaid after the execution of the warrant. Reliance in this regard has been placed on the decisions of this Court in Dalip Singh v. Smt. Balwinder Kaur and Others, 1973 (1) C.L.R. 162; Karnail Singh v. Gurdial Kaur, 1974 Cr.L.J. 38 and Raj Kumar v. Smt. Krishna Kumari and Another, 1984 (2) C.L.R. 396. The learned Counsel for the respondents, on the other hand, maintains on the strength of the Division Bench decision of the Calcutta High Court in Moddari Bin v. Sukdeo Bin, A.I.R. 1967 Calcutta 136 that in those cases where the distress warrant remained unexecuted, there is no bar in sending the defaulter to civil prison.
5. The provisions of Section 125(3) reads as under :
'(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued a warrant for levying the amount due in the manner 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 is sooner made:
Provided 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;
'Provided further that if such person offers to maintain his wife on condition of her living with him, and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.'
A bare perusal of the same leaves no doubt that if any person fails to comply with the order of payment of maintenance allowance awarded under Sub-section (1) of Section 125 without sufficient cause then the Magistrate for every breach of the order would issue a warrant levying the amount due in the manner provided for levying fines and may sentence such person to imprisonment for the whole or any part of each month remaining unpaid after execution of the warrant. The procedure for levying fines is contained in Section 421 of the Code. There are two modes for issuing warrant for levying fine, one being by attachment and sale of moveable property belonging to the offender, the other being issuance of a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the moveable or immoveable property or both of the defaulters. It is further provided that the recovery of fine can be made by either or both of these modes. Thus, there is no doubt that under Sub-section (3) of Section 125, the legislature intended that the personal liberty of the defaulter can be curtailed by sending him to imprisonment in default of payment of such arrears if any amount remains unpaid after the execution of the warrant. So has been the consistent view of this High Court. In Dilip Singh's case (supra), a similar construction was put on the provisions of Section 488(3) of the old Code by holding that issuance of a warrant of attachment is a condition precedent to the issuance of a warrant of imprisonment. Again in Karnail Singh's case (supra), a similar view was reiterated by relying upon Jagannath Patra v. Purnamashi A.I.R. 1968 Orissa 35. In Raj Kumar's case (supra), the provisions of Section 125(3) of the new Code were interpreted by a Single Bench of this Court to a similar effect.
6. The ratio of the Division Bench decision of the Calcutta High Court in Moddari Bin's case (A.I.R. 1967 Calcutta 136) regarding this controversy cannot be said to be contrary to the view taken by this Court, as in paragraph 17 it was held that there is no doubt that the Magistrate cannot sentence the defaulter before the execution of the warrant but on facts of that case, it was found that the distress warrant had been executed, as the successful execution of the warrant in this case does not only mean successful execution of the warrant but would also include unsuccessful execution of the warrant yielding no fruits. The relevant observations in paragraph 17 read as under :
'No doubt before the execution of the warrant the Magistrate cannot sentence the defaulter. But on the facts as we have already recorded the distress warrant has been executed. Execution of the warrant in this case does not mean successful execution of the warrant. It also includes unsuccessful execution of the warrant yielding no fruits. If the execution of the warrant was always successful then obviously there would be no further question 'of sentencing the defaulter. Besides, the sentence can be awarded by the Magistrate Under Section 488 Cri.P.C. which expressly provides for the case even if the whole amount remains unpaid after the execution of the warrant. That must necessarily contemplate a case where the whole of the amount due remains unrealised after unsuccessful execution of the distress warrant or the other warrant Under Section 386(1)(b) of the Code of Criminal Procedure. On the facts we have come to the conclusion as already indicated that the distress warrant issued in this case has been unsuccessfully executed and was infructuous. Therefore the Magistrate had the right to order a sentence of imprisonment.'
7. The Division Bench further observed that as the provisions of Section 386(1)(b) of the old Code (corresponding to the provisions of Section 421 of the new Code) provided either of the above-referred modes for levying the fine and thus it was not necessary to have sent the warrant for execution to the Collector for recovery of the fine as arrears of land revenue.
8. In the case in hand, the perusal of the file of the Executing Court shows that on 17.8.1985 and 27.10.1985, the bailiff attached to the Court of the Sub-Judge 1st Class, Dawali had gone to attach the property of the husband, but there was resistence and, therefore, he had to report that the attachment be made with the help of the police. It appears that during this period, the husband alienated his entire property and, therefore, Smt. Jass Kaur filed an application to a similar effect and requested for issuing of conditional warrant for imprisonment of the husband and the order was passed on 19.4.1986. The impugned order of the Judicial Magistrate also reveals that the distress warrant for attachment and sale of the property of the defaulter remained unexecuted due to reasons beyond the control of the Court. Thus, the order of imprisonment of the defaulter under. Section 125(3) of the Code appears to be well justifiable in the circumstances of the case.
9. However there is considerable force in the contention of the petitioner that the defaulter could be sentenced to imprisonment for a period of one year at the most as the wife or the other persons entitled to maintenance allowance are required to file an application within a period of one year from the date on which the amount becomes due. In the case in hand, the amount of the maintenance allowance from the date of application i.e. 27.1.1982 to 26.1.1983 became due only when the Judicial Magistrate passed the parent order on 3.10.1983. The application for execution having been filed on 15.10.1984, is certainly barred by time in view of the provisions of proviso (i) to Sub-section (3) of Section 125 of the Code. Although in this application the arrears from 27.1.1982 to 26,11.1983 had been claimed, the petitioner could have claimed arrears of maintenance allowance from 15.10.1983 onwards. Thus, the order of the Trial Court in sentencing the petitioner to imprisonment for one year and ten months is certainly illegal being violative of the above-referred mandate of the legislature contained in proviso (i) to Sub-section (3) of Section 125 of the Code. Consequently, the impugned order is partly set aside by accepting this petition to the extent that the petitioner would be liable to undergo imprisonment for one year only for arrears of maintenance allowance from 15.10.1983 to 14.10.1984.
10. The petition stands disposed of in these terms at the motion stage itself.