Judgment : In this revision case the petitioner who has been ordered to pay maintenance at the rate of Rs. 35 per mensem to his wife the respondent and her minor son as per the order passed by the learned Sub-Divisional Magistrate of Sankari in M.C. No. 151 of 1968, challenges the order of that learned Magistrate, sentencing him to undergo simple imprisonment for one year for non-payment of the arrears of maintenance amounting to Rs. 1,860. 2. His grievance are: (1) that the learned Magistrate should have found that the respondent was not entitled to claim arrears of maintenance for a period of 4 years and 9 months but could only claim one year's arrears of maintenance; (2) that the learned Magistrate did not consider his objection that, since, after the passing of the order directing him to nay maintenance to his wife, the respondent has been living-in adultery she was not entitled to enforce the order for maintenance passed in her favour; (3) that the learned Magistrate erred in sentencing him to imprisonment without first issuing a distress warrant for realisation of the arrears by attachment and sale of his properties; and (4) that the lower Court erred in issuing a warrant for his arrest without issuing a notice to him. 3. With regard to the first contention, the learned Counsel for the petitioner submitted that he was not pressing that objection for actually even though in M.C. No. 151 of 1968 an order was passed directing the petitioner to pay maintenance to his wife, the respondent and her minor son at Rs. 35 per mensem from 28th December, 1968, she could not collect the maintenance so awarded since the petitioner filed Crl.M.P. No. 1070 of 1969 and Crl.R.C. No. S.R. No. 32160, dated 25th August, 1969, and obtained an order which prevented her from collecting the maintenance and when on 7th August, 1972, she filed a petition for recovery of the arrears maintenance, the petitioner filed a suit O.S. No. 1057 of 1971 for a declaration that she, the respondent had never married him and that the minor was not a child born to her by him, the petitioner, and obtained an ex parte decree. Since it was entirely due to the fact that the petitioner instituted various proceedings which effectively prevented her right from realising the maintenance awarded to her that arrears of maintenance for 4 years and 9 months have accrued, the petitioner cannot validity contend that in spite of those factors the respondent cannot claim arrears of maintenance for more than a year prior to the filing of her application her enforcement of the order for maintenance. 4. The second proviso to sub- section (3) of section 488, Criminal Procedure Code, states, “provided, further, 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”. Applications had been previously filed by the respondent for recovery of maintenance awarded to her, but by reason of the tendency of the various proceedings referred to above, the arrears could not be collected. Eventually when all the legal hurdles which prevented her from realising the maintenance awarded to her had been cleared, she came forward with the application for realisation of the arrears which had accrued. It was only on the date when those legal hurdles were removed that the amount could be said to have become due and within one year thereof she has filed her application for realisation of the arrears. Therefore, the first contention of the petitioner is untenable and rightly his learned Counsel did not press the same, 5. With regard to the second objection, the petitioner in the objection petition filed by him has stated that from about 1½ years prior to the filing of his objection (which was filed on 14th November, 1973), his wife, the respondent has been living in adultery openly with one Mottayan of Mettupalayam and it is that Mottayan who is financing her for the litigation and is maintaining her. Sub-section (4) of section 488 says that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. The learned Magistrate did not consider this objection at all. Sub-section (4) of section 488 says that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. The learned Magistrate did not consider this objection at all. When the execution of a maintenance order is applied for and the counter-petitioner contends that the order should not be executed and sets out certain grounds in support of his contention, the Court is bound to consider the sufficiency of the cause alleged by the counter-petitioner and refuse execution, if the Court should be satisfied that the cause is sufficient and to grant execution if the Court is not so satisfied. (Vide Theetharappa Pillai v. Meenakshi Ammal. Under sub- section (4), of section 488, Criminal Procedure Code, the Magistrate is entitled to refuse to enforce the maintenance order on a finding that during the period in respect of which maintenance was sought to be recovered the applicant was living in adultery. Unchastitv on the part of the wife subsequent to award of maintenance can be a pood ground for refusal of husband to comply with the order. 6. In Smt. Kalyani Debi v. Nirmal Kumar Panda it was held that where a husband against whom an order for maintenance of his wife has been passed, objects to the claim for arrears on the around that the wife was living a life of adultery and as such she was not entitled to recover any maintenance, the Magistrate is bound to take evidence on the question whether the wife has been living in adultery since the date of the Magistrate's order of maintenance. If his finding is that the wife has been living in adultery since, he will cancel the order and reject the wife's application for recovery of arrears of maintenance. If, on the other hand, he finds that question in the negative, he will reject the husband's application for cancellation of the order of maintenance and proceed under sub section (3) of section 488, Criminal Procedure Code, for the recovery of the arrears of maintenance. If, on the other hand, he finds that question in the negative, he will reject the husband's application for cancellation of the order of maintenance and proceed under sub section (3) of section 488, Criminal Procedure Code, for the recovery of the arrears of maintenance. It was also held in that decision that where it has been already decided upon that the wife was not living-in adultery upto a particular date and when the decision has not been set aside by a superior Court, it is not open on general principles to another or the same Magistrate to go into the same question over again. 7. No doubt the petitioner had contested originally the petition for maintenance filed by the respondent against him by alleging that the respondent was not entitled to maintenance since she was living in adultery and that contention was negatived: but since in the objection petition which he has now filed in these proceedings in which the respondent is seeking to enforce the order of maintenance passed in her favour he has categorically stated that from about 1½ years prior to the filing of the objection petition (i.e.. subsequent to the order of maintenance passed in her favour " ) the respondent has been living in adultery, the earlier division, cannot be canvassed by the respondent for persuading the Court not to go into that objection raised by the petitioner. 8. In Kamala Sundari Dasi v. Nirmony Dasi it has been observed as follows: " Sub- section (3) of section 488. Criminal Procedure Code, provides that if a person ordered to pay maintenance under sub section (1) of section 488. fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due in the manner provided for realisation of fines. It is therefore clear that before a Magistrate can make an order for the issue of a distress warrant, the Magistrate must be satisfied that the husband has failed without sufficient cause to comply with the order for maintenance. In refusing to hold an enquiry upon the objection filed by the husband, the Magistrate acted in violation of the clear provisions of sub- section (3) of section 488, Criminal Procedure Code. In refusing to hold an enquiry upon the objection filed by the husband, the Magistrate acted in violation of the clear provisions of sub- section (3) of section 488, Criminal Procedure Code. The failure of the husband to obtain a cancellation of the order for maintenance under sub- section (5) of section 488 does not stand in the way of his filing an objection under sub- section (3) of section 488. If as a matter of fact, the husband is able to prove the allegations which he has made in his objection, the Magistrate will not only refuse to issue a distress warrant under sub- section (3) of section 488, but he should also cancel the order for maintenance under sub- section (5). It is quite clear from the words used by the legislature in subsection (3) that the Magistrate must hold an enquiry as to the sufficiency of the cause shown by the husband and he cannot order the issue of a distress warrant without satisfying himself as to the sufficiency of the cause shown”. 9. In Rukmini Bai v. Surajbhan Singh a petition for maintenance was ordered by the Court negativing the plea of the husband that the wife was living in adultery and subsequent to the order the husband made some payments and thereafter failed to comply with the order. But when the wife sought to enforce the order under section 488 (3), Criminal Procedure Code, the husband again came out with the plea of adultery; and it was held that the unchastity on the part of the wife subsequent to the award of maintenance can be a good ground for refusal of the husband to comply with the order; but such a plea could not be availed of if the allegation as the unchastity had been made and negatived in the earlier proceedings, but when the husband came forward with the allegation that subsequent to the passing of the order of the wife had committed adulterous acts and was living an unchaste life, the same could be enquired into; and sub- section (5) of section 488, envisages such a condition and it does not impose a liability on the husband to file a separate petition and seek the cancellation of the order and such an objection could be pleaded at the time when the wife was trying to seek the enforcement of the order. 10. 10. In the case now before me, the definite allegation made by the petitioner in his objection petition is that since the date of the order for maintenance i.e., from about the middle of the year 1972, the respondent has been living in adultery. In those circumstances, the Magistrate was bound to enquire into that objection and if he found against the petitioner in regard to that objection then he could proceed to enforce the order for maintenance. But, if on the other hand, he found in favour of the petitioner on that question he should refuse to enforce the order for maintenance. Since the Magistrate has not gone into that objection of the petitioner, the order of the learned Magistrate has to set aside the matter remanded back to the Magistrate for going into that objection and then proceeding to deal with the matter according to law. 11. The third and fourth objections raised by the petitioner have also to be upheld. As I have already pointed out, under section 488 (3) only if the person so ordered to pay maintenance fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due in the manner therein before 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 if sooner made. The wording of this sub section clearly indicates that an opportunity should be given to the person who has been ordered to pay maintenance to show that he had sufficient cause for failing to comply with the order for maintenance. Further, the provision in the proviso to sub- section (3) that the Magistrate may issue a warrant notwithstanding the husband's offer to maintain his wife, contemplates that the offer has been made before the issue of warrant; and the surest way of ensuring that the husband has been afforded an opportunity of making such an offer before a warrant is issued is by issuing a notice to him to show cause why a warrant should not be issued. The provision in sub- section (6) of section 488 also indicates that a notice should be given to the husband and an enquiry should be made in his presence before issuing a warrant. The Magistrate must have evidence to satisfy himself that a warrant should be issued. An order passed by a Magistrate without issuing a notice and holding an enquiry is illegal. (Vide Padmavati Bai v. Kalyan Rao) The reason is that if such notice is issued, it would be open to the husband to establish sufficient cause for non-compliance in which even it would not be permissible for the Magistrate to issue a warrant for levying the amount. 12. In this case immediately on the presentation of the application of the respondent for enforcement of the order for maintenance, the learned Magistrate ordered the issue of a non-bailable warrant for the apprehension of the petitioner without issuing any notice and in execution of that warrant the petitioner was arrested and brought before the Court and then he filed the objection petition. But then, inasmuch as the petitioner has filed an objection petition and I have already decided, to remand the mater back to the learned Sub -Divisional Magistrate for the purpose of enquiring into the question whether the respondent has become disentitled to receive maintenance from her husband by reason of adultery after the date of the order for maintenance, this failure of the Magistrate to issue a notice to the petitioner before ordering the issue of a non-bailable warrant for his arrest would not in any way affect the matter. 13. 13. Then again section 488 (3), Criminal Procedure Code, says that if any person so ordered to pay maintenance fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due in the manner provided for levying of fines and may sentence such a 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……………The wording of the sub- section clearly shows that the Magistrate on finding that the person ordered to pay maintenance has failed without sufficient cause to comply with the order should issue a warrant for levying the amount due in the manner prescribed for levying of fines, and only if the amount is not realised by such attachment and sale of his movables, the Magistrate is entitled to sentence the petitioner to imprisonment for each month's allowance which remained unpaid after the execution of the warrant. The wording of the sub-section clearly prohibits the simultaneous issue of a distress warrant and a warrant for the arrest of the husband committing default and it has been so held in a number of decisions. 14. Where the person ordered to pay maintenance has failed or has refused to pay it, the Magistrate cannot straightaway order him to be committed to jail; the first thing that must be done is to issue a distress warrant and it is only for the whole or part of each month's allowance that remains unpaid after the execution of the warrant that imprisonment may be awarded. (Vide Maunug Tun Zan v. Ma Myaing.) 15. In Bangaiah v. Rukmini Bai and another it has been held that the words “for the whole of or any part of each month's allowance remaining unpaid after execution of the warrant” in section 488 (3) will have no meaning, if it was the intention of the Legislature that even without recourse to a warrant of attachment, a warrant of imprisonment can be ordered. What is contemplated is that in the first instance a warrant of attachment of the property to satisfy the demand of arrears should issue and only if the whole or any part of it remains unpaid after execution of the warrant, imprisonment can be ordered and the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for imprisonment and issuing a warrant for arrest without first having recourse to attachment and sale of the property of the respondent is illegal. 16. To the same purport is the decision in Jagannath Patra v. Purnamashi Saraf and another in which it was held that the order of the learned Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law. 17. Therefore, the order of the learned Sub-Divisional Magistrate in his case directing the issue of a non-bailable warrant for arresting the petitioner without first issuing a warrant for realisation of the arrears and his order sentencing the petition to imprisonment are clearly illegal and are set aside and the Magistrate will after enquiring into the objection raised by the petitioner to the enforcement of the order for maintenance on the ground that since the date of that order his wife, the respondent, has been living in adultery follow the correct procedure indicated above in disposing of the petition. The matter is therefore remanded back to the learned Sub-Divisional Magistrate for disposal according to law and in the light of the observations made by me above.