1. The facts of the case in which this rule has been granted are briefly these: One Broja Mohan Saha has been ordered under Section 488, Criminal P.C., to pay a maintenance for the support of his two illegitimate sons. This maintenance was apparently not paid and a distress warrant was taken out against the aforesaid Broja Mohan Saha. There is a certain house which belongs to Broja Mohun and this house has been mortgaged to one Lalit Mohan Saha the uncle of Broja Mohan Saha. The learned Magistrate proceeded to pass the following order:
Under these circumstances the income from the rent must be regarded as defendant's income which is spent under defendant's direction. I accordingly order that out of this income Lalit Mohun Saha do pay Rs. 10 per month towards the maintenance of the defendant's children. This order will take effect from the first week of September 1930.
2. This is an order obviously not contemplated by Section 488. Section 488, Criminal P.C., says that if the maintenance is not paid a distress warrant should be issued for the realization of the dues. It does not contemplate an order on a third party to pay the amount monthly out of certain income which may or may not be received on behalf of the defendant. The order therefore ordering Lalit Mohun Saha to pay Rs. 10 a month towards the maintenance of Broja Mohun's children is bad and must be set aside.
3. It is still open to Sarojini Dassi, if she thinks fit, to apply to the Magistrate for a proper order.