JUDGMENT T. U. Metha, J.—The petitioner Agya R m is the husband of respondent No. 1 Pushpa Devi and the father of two minors who are respondents Nos. 2 and 3. la proceedings under section 488 of the Code of Criminal Procedure, 1898, the respondents obtained an order of maintenance from the Court of Judicial Magistrate Kulu on 19-1-1973. By this order the teamed Magistrate granted maintenance of Rs 125 to the first respondent, the wife of the petitioner and at the rate of Rs. 50/- per month to each of the respondents Nos. 2 and 3 from the date on which the maintenance application was filed, that is from 11-9-1970. 2. The petitioner failed in providing maintenance as ordered by the Court with the result that on 10 4-1974 the respondents applied for the enforcement of the maintenance order as contemplated by sub-section (3) of section 488 of the old Code of Criminal Procedure. It appears from the enforcement proceedings undertaking before the learned Magistrate that first a warrant for the attachment and sale of movable properties belonging to the petitioner was issued, but that warrant was received back on 3-12-1974 unexecuted as no property of the petitioner was found. Thereafter proceedings for the attachment of immovable property of the petitioner were undertaken and it appears from the record of the case that the petitioners share in the immovable property was attached. The land thus attached is admeasuring 8 bighas and 12 biswas. The remaining property could not be attached because the petitioners l/4th share therein was found to have been gifted away by him to his son. However, it was stated at the bar by learned Advocates of both the perries that the attachment of 8 bighas and 12 biswas of land still continues. 3. The learned Advocate of the parties conceded that the warrant of attachment of the above referred immovable property has still remained unexecuted. In the meanwhile, however, the learned Magistrate seems to have issued a warrant against the person of the petitioner and has ordered him to suffer R. I. for three years and six months for non-payment of the arrears of maintenance for that period. This order has been passed by the learned Magistrate on 29-5-1976 and being aggrieved by that order the petitioner has filed the present petition. 4. This order has been passed by the learned Magistrate on 29-5-1976 and being aggrieved by that order the petitioner has filed the present petition. 4. The impugned order shows that on 29-5-1976 the petitioner was not present in Court nor by that time he had made payment of the arrears of maintenance. His Advocate, however, requested the Court to grant an adjournment on the ground that the petitioner was not "feeling well". The learned Magistrate, however, held that since no affidavit was filed, and no medical certificate was produced in proof of the alleged illness of the petitioner, and since the date was fixed for the payment of arrears of maintenance in Court and no such payment was in fact made, the petitioner failed to show sufficient grounds for not paying the maintenance and, therefore, he rendered himself liable to suffer imprisonment for non-payment of the arrears of maintenance. 5. The learned Advocate of the petitioner has contended that the order of sentence passed by the learned Magistrate is illegal inasmuch as the warrant for the attachment and sale of petitioners immovable property was still pending unexecuted and till that execusion was over, the petitioner could not have been sent to jail. I find good deal of substance in this contention because on perusal of sub-section (3) of section 588 of the Code of Criminal Procedure, it is found that the person who has been arrears of the amount of maintenance could be sentenced to imprisonment only to the extent to which the amount of maintenance remains unpaid after the warrant is executed in the manner provided in that sub-section. This is clear from the provisions of sub-section (3) of section 488 which reads as under:— "(3) Enforcement of order.—If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a terra which may extend to one month or until payment if sooner made." There is a proviso attached to this sub-section which relates to the offer of the person concerned to maintain his wife on condition of her living with him. We are not concerned with this proviso so far as this case is concerned. But another proviso which is attached to this sub-section as relevant, looking to the contention raised on behalf of the petitioner. This proviso is as under:— "Provided further, that no warrant shall be issued for the recovery of any amount due under this sect/on 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." If the main provisions of sub-section (3) quoted above are scrutinised, it will be found that if it is noticed that the person against whom the maintenance order is made fails without sufficient cause to comply with the order, then the following course is open to the Magistrate :— (1) He may issue a warrant for levying the amount due in the manner which is provided in the Code for levying fines. (2) He may sentence such person to imprisonment if after the execution of the warrant as above any part of the maintenance remains unpaid. 6. It is apparent, therefore, that the order of imprisonment can be passed only with regard to the realisation of the amount of maintenance remaining unpaid after the warrant is executed in the manner provided for levying fines. Then the question is what manner provided for levying fines. For this purpose we have to make a reference to section 386 of the Code, the relevant portion of which is as under :— "386. Warrant for levy of fine.-—(1). Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following way, that is to say, it may— (a) issue a warrant for the levy of the amount by attachment , and sale of any movable property belonging to the offender ; (b) issue a warrant to the Collector of the district authorizing him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter;" 7. From the above quoted provisions of section 386 it is evident that fine could be levied by attachment and sale of movable or immovable or both of the defaulter. From the above quoted provisions of section 386 it is evident that fine could be levied by attachment and sale of movable or immovable or both of the defaulter. Therefore, when sub-section (3) of section 488 contemplates the issue of warrant for levying the arrears of maintenance in the manner provided for levying fines, it means that the warrant should in the first instance be for attachment and sale of movable or immovable or both properties of the defaulter. It is only after this warrant is executed that it could be known what amount of maintenance remains unpaid and it is only for this unpaid amount of maintenance that the defaulter could be sentenced to a term of imprisonment. 8. In Jagan Nath Patra v. Purnamashi, AIR 1968 Orissa 35 and Karnail Singh v. Gurdial Kaur, 1974 Cr LJ 38 such a view was taken. 9. Now, so far as the facts of this case are concerned, it is an admitted position that on the day on which the learned Magistrate has passed the impugned order sentencing the petitioner to the imprisonment for three years and six months, the land admeasuring 8 bighas and 12 biswas which was attached, was not sold. Under these circumstances, so long as this land was not sold, it was not possible to know how much amount of maintenance was remaining unpaid and, therefore, the learned Magistrate could not have passed the impugned order of sentence. 10. Shri Thakur, who appeared on behalf of the petitioner, contended that the facts of the present case are governed by the above quoted second proviso attached to sub-section (3) of section 488 which says that warrant contemplated by sub-section (3) cannot be issued for the recovery of the amount due unless the application for the same recovery is made within a period of one year from the date on which the amount becomes due. In this connection he has pointed out that the amount of maintenance has become due from 11-9-1^70 as ordered by the learned Magistrate and since this application for recovery is filed on 10-4-1974, this application is time- barred. 11. In this connection he has pointed out that the amount of maintenance has become due from 11-9-1^70 as ordered by the learned Magistrate and since this application for recovery is filed on 10-4-1974, this application is time- barred. 11. The contention that the period of limitation contemplated by the second proviso would run from 11-9-1970 is not acceptable because the respondents right to get maintenance from that date has become due only on the date on which the order of maintenance was passed by the learned Magistrate, that is, only on l9-1-1973. Before that date nobody knew whether the respondent would be entitled to maintenance from 11-9-197 or from any subsequent date. Therefore, it cannot be said that the maintenance from 11-9-1970 became due to the respondents from any date before 19-1-1973 which was the date on which the learned Magistrate passed the order of maintenance. 12. However, even if the date of 19-1-1973 is taken to be the date from which the limitation should be counted, it is obvious that the present application for enforcement is made more than one year thereafter. As already noted above, this application is made on 10-4-1974. Therefore, under second proviso the warrant can be issued only for the arrears of maintenance for a period of one year prior to the date of application for enforcement. In other words, the warrant could be issued only with regard to the respondents maintenance from 11-4-1973 to 10-4-1974. 13. No other contention was raised on behalf of the petitioner. 14. It is found that the learned Magistrate has not issued the warrant to the Collector for attachment as well as the sale of the property which is attached. This is merely a warrant for attachment. But under section 386 of the old Code of Criminal Procedure the warrant of attachment and sale has to be issued to the Collector authorising him to realise the amount by execution according to civil process against the immovable property concerned. The learned Magistrate, shall, therefore, issue such a warrant to the Collector for the sale of 8 bigha and 12 biswas of land which is under attachment. This warrant shall be for the recovery of the amount of maintenance in arrears only from 11-4 1973 to 10-4-1974. 15. The learned Magistrate seems to have issued warrant for the arrears of maintenance at the rate of Rs. 300/- per month. This warrant shall be for the recovery of the amount of maintenance in arrears only from 11-4 1973 to 10-4-1974. 15. The learned Magistrate seems to have issued warrant for the arrears of maintenance at the rate of Rs. 300/- per month. This also is a mistake because the total maintenance awarded to the respondents comes to Rs. 225/- per month. Therefore, the fresh warrant which is required to be issued would be issued accordingly. 16. The orders as regards the imprisonment of the petitioner, if any, can be passed only after knowing the result of the execution of the above referred warrant. 17. In view of what is stated above, the rule is accordingly made absolute. The impugned order is set aside and the matter is sent back to the learned Magistrate for proceeding further according to law. -