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Sm. Renuka Paul Vs. Dhirendra Nath Paul - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ171
AppellantSm. Renuka Paul
RespondentDhirendra Nath Paul
Cases ReferredNazir Ahmed v. Emperor
Excerpt:
- .....made default in payment to the extent of rs. 2,700/- from october, 1969 to september, 1972. the learned magistrate, therefore, issued an order of attachment of the salary of the defaulting husband to the extent to rs. 150/- per month from november 1972 and directed the government of west bengal, under which the husband is an employee, to remit the money to the court of the learned magistrate by the 15th of every month commencing from 15-11-72. a revisional application was taken therefrom to the learned sessions judge, ali-pore by the second party dhirendra nath paul and sri p. dutta, additional sessions judge, second court, alipore ultimately made the reference referred to above.3. mr. chaitanya chandra mukherjee, advocate with mr. susil kumar dutta, advocate appeared in support of.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This is a reference by Sri P, Dutta, Additional Sessions Judge, Second Court, Alipore under Section 438 of the Code of Criminal Procedure recommending that an order dated 1st November, 1972 passed by Sri C. D. Chatterjee, Magistrate 1st Class, Alipore ordering attachment of Rs. 150/- from the pay of the second party and also issuing the said order on the State Government, the employer of the second party, to remit the amount to the court by the 15th of every month in a proceeding under Section 488 being case No. M 656 of 1966/T. Rule 571 of 1970 may be set aside.

2. The facts leading on to the Reference are short and simple. An order of maintenance was passed under Section 488 of the Code of Criminal Procedure in favour of the first party Smt. Renuka Paul at the rate of Rs. 75/- per month. The order was passed against the second party Dhirendra Nath Paul with effect from 22nd December, 1966. The second party however made default in payment to the extent of Rs. 2,700/- from October, 1969 to September, 1972. The learned Magistrate, therefore, issued an order of attachment of the salary of the defaulting husband to the extent to Rs. 150/- per month from November 1972 and directed the Government of West Bengal, under which the husband is an employee, to remit the money to the court of the learned Magistrate by the 15th of every month commencing from 15-11-72. A revisional application was taken therefrom to the learned Sessions Judge, Ali-pore by the second party Dhirendra Nath Paul and Sri P. Dutta, Additional Sessions Judge, Second Court, Alipore ultimately made the Reference referred to above.

3. Mr. Chaitanya Chandra Mukherjee, Advocate with Mr. Susil Kumar Dutta, Advocate appeared in support of the Reference on behalf of the second party Dhirendra Nath Paul. Mr. Barindra Nath Roy, Advocate appeared on behalf of the State and supported the Reference. Nobody appeared on behalf of the first party, wife.

4. Having heard the learned Advocates on behalf of the second party as also the State and on going through the letter of Reference and the connected materials on the record I hold that the Reference has been rightly made recommending that the order of attachment passed by the learned Magistrate dated 1-11-72 should be set aside as the same has been passed in non-conformance to the procedure established by law. Under the provisions of Section 386(1)(b) of the Code of Criminal Procedure the learned Magistrate concerned can issue a warrant for the levy of the amount due, by attachment and sale of any movable property belonging to the defaulter or he can under the provisions of Section 386(1)(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to the civil process against the movable or immovable or both of the defaulter. There is some doubt as to whether future salary is a movable property and in any event if the salary of the defaulting husband in this case is to be attached the provisions of Section 386(1)(b) must be followed strictly. The order passed in this context by the learned Magistrate on 1-11-72 is that Rs. 150/- be attached from the pay of the second party and an order was issued accordingly on its employer, viz., the State of West Bengal and the said amount was to be remitted to court by the 15th of each month, the first payment being due on 15-11-72. It was further directed that when the amount is received it should be apportioned into Rs. 75/- for the current and Rs. 75/- for arrear for October, 1972. This order is not in conformance to the provisions of Section 386(1)(b) enjoining that a warrant to the Collector of the District may be issued in this behalf by the learned Magistrate to realise the amount by execution according to the civil process. Under the provisions of Sub-section (3) where the court issues the warrant to the Collector as mentioned above such warrant shall be deemed to be a decree and the Collector is to be deemed to be a decree-holder within the meaning of the Code of Civil Procedure. It follows therefore that all the provisions of the Code of Civil Procedure as to execution of decree shall apply accordingly. The impugned order passed by the learned Magistrate has overlooked the mandatory provisions of the Statute and therefore is in a non-conformance to the procedure established by law. The learned Additional Sessions Judge accordingly has directed rightly that the said order should be set aside and the learned Magistrate should be called upon to follow the correct procedure laid down under Section 386(1)(b) of the Code of Criminal Procedure. This point has been considered in a series of decisions and a reference may be made to the case of Rajendra Nath Ghosh v. Brojabala Ghosh 0043/1956 : AIR1956Cal135 . Mr. Justice Debabrata Mookerjee held therein that for the purpose of enforcement of a maintenance order, the Magistrate is required to follow the procedure prescribed in Section 386 of the Code of Criminal Procedure and he further held that where the salary of the defaulting husband has to be attached, the provisions of Sub-section (1), clause (b) of Section 386 have to be followed. A recourse to the aforesaid provisions automatically attracts the provisions contained in Sub-section (3) and the warrant issued to the Collector by the learned Magistrate gets impressed with the character of a decree with the necessary consequence that it was executable by the nearest competent civil court attracting the provisions of the Civil Procedure Code relating to the execution of such decree. I respectfully agree with the said view and I hold that a failure to do that has vitiated the ultimate order. The order passed by the learned Magistrate is also bad when approached from another standpoint of view. After the passing of the Constitution, emphasis is laid on the procedure established by law. A reference may be made to the wellknown observations of the Judicial Committee in the case of Nazir Ahmed v. Emperor (1966) 63 Ind App 372 : 37 Cri LJ 897 (PC) where Lord Roche delivering the judgment of the Judicial Committee observed at pages 381-82 'Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden'. This principle has been approved of again and again by the Supreme Court and by the other High Courts in this country. It is a well-settled principle and the non-conformance to the mandatory provisions of Section 386(1)(b) of the Code of Criminal Procedure has been bad and repugnant, vitiating the ultimate order passed by the learned Magistrate.

5. In the result, I accept the Reference; set aside the impugned order dated the 1st November, 1972 passed by Sri C. D. Chatterjee, Magistrate 1st Class, Alipore District 24 Parganas in case No. M. 656/66/T. Rule 571 of 1970 under Section 488 of the Code of Criminal Procedure; and I direct that the matter shall go back to the court below for being disposed of expeditiously in the light of the observations made above and in accordance with the provisions laid down under Section 386(1)(b) of the Code of Criminal Procedure.

6. The records shall so down as early as possible.


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