Virender Kumar Seth v. Roopa Seth — 1985 DIGILAW 438 (ALL)

JUDGMENT N.N. Sharma, J. - This Revision is directed against order dated 31.1.1983 recorded by learned Chief Judicial Magistrate, Aligarh in Execution Case No. 136/11, Roop Seth v. Virendra Kumar Seth in proceedings under Section 128 of Code of Criminal Procedure by which the .abjection of revisionist was dismissed against the realisation of accumulated maintenance of Rs. 7500/- which is worded as below: "I have heard both the parties. There is no force in the objection filed against a show-cause-notice. The notice, therefore confirmed. Let the warrant be issued accordingly. Admittedly, opposite party No. 1, Smt. Roopa Seth is wife of Virendra Kumar Seth revisionist. They were married on 30.6.1978. As the relations between the parties got strained, the wife filed an application for maintenance under Section 125 of Code of Criminal Procedure (Act No. 3 of 1974). She secured order from the court of judicial Magistrate Aligarh on 20.7.1981 by which the revisionist was ordered to pay maintenance allowance at the rate of Rs. 300/- per month from 25.9.1979, viz., the date of filing the application. However, the matter was carried by the revisionist before the Sessions Judge but the revision was dismissed on 4.11.1981. The matter was again carried by the revisionist to this Court under Section 482 of Code of Criminal Procedure but that too was dismissed on 21.10.1982. Thus, the order became final. Meanwhile, a suit was filed by revisionist for dissolution of marriage as a nullity under Sections 12 and 13 of Hindu Marriage Act alleging opposite Party No. 1, Smt. Roopa Seth, his wife, as insane at the time of her marriage, Opposite Party No. 1 was awarded costs of the litigation of the civil suit amounting to Rs. 850/- and maintenance at the rate of Rs. 300/- per month vide order of Sri Ram Kishore, Civil Judge, Agra dated 3.3.1984 in Civil Suit No. 237 of 1979, Virendra Kumar Seth v. Smt. Roopa Seth. However, the aforesaid order of maintenance in the civil suit was not got executed by Opposite Party No. 1 as stated at the bar by Sri R.K. Shangloo, learned Advocate for the Opposite Party No. 1. The arrears of maintenance were ought to be recovered through the execution application by Smt. Roopa Seth. Notice was issued to the revisionist to show-cause as to why the accumulated arrears of maintenance may not be recovered from him. The arrears of maintenance were ought to be recovered through the execution application by Smt. Roopa Seth. Notice was issued to the revisionist to show-cause as to why the accumulated arrears of maintenance may not be recovered from him. The revisionist raised objection on the ground that having regard to his meagre salary he was not in a position to pay such huge amount and was simply liable for the arrears which fell due within one year on the date of dismissal of his revision on 4.11.1981 by Sessions Judge. He also prayed that out of the accumulated arrears, Rs. 3,000/- would be paid by him on 31.1.1984 and Rs. 3,000/- upto 31.1.1985. So, he prayed for instalments only on the ground that it was on account of the fault of opposite party that the amount became huge to the extent of Rs. 7500/- vide Annexure-I dated 31.1.1983. 2. There is an affidavit of Smt. Roopa Seth dated 15.1.1985 by which allegations of revisionist were traversed. It was shown by the lady that all these allegations made by the revisionist were baseless. When the first order was drawn by Judicial Magistrate, Aligarh on 20.7.1981, awarding her maintenance, she was quick about the matter and applied on 5.8.1981 for realisation of the amount but the revisionist got it stayed on 14.8.1981 under the order of learned VIIth Additional Sessions Judge, Aligarh by filing a Criminal Revision No. 219 of 1982. 3. When that revision was dismissed on 4.11.1981 the lady again applied for recovery of the amount of her maintenance in December, 1981 but the revisionist got the realisation of the amount stayed by this Court by filing an application under Section 482 of Code of Criminal Procedure. When the High Court dismissed that application of revisionist on 21.10.1982, the application was moved for realisation of the amount on 21.12.1981. The matter was again carried to this Court after the impugned order was drawn. Under the ad interim stay order 14.2.1983, the revisionist had to deposit the arrears for one year and was bound to pay maintenance at the rate of Rs. 300/- per month. He had been paying the amount through deductions of his salary. It was on knowing the full facts that the learned Magistrate rejected the objection of the revisionist. The impugned order was drawn on 31.1.1983. 4. I have heard learned counsel for parties at length. 300/- per month. He had been paying the amount through deductions of his salary. It was on knowing the full facts that the learned Magistrate rejected the objection of the revisionist. The impugned order was drawn on 31.1.1983. 4. I have heard learned counsel for parties at length. On behalf of revisionist, my attention was invited to an earlier order of attachment (Annexure-II) dated 4.11.1982, by which learned Chief Judicial Magistrate, Aligarh directed the Manager, Punjab National Bank, Rajamandi, Agra to deduct a sum of Rs. 300/- each month from the pay of revisionist and return the warrant with an endorsement certifying what has been done by him. Thus, the contention of learned Advocate for revisionist was that this order of learned Magistrate was without jurisdiction and is sustainable in the eye of law. Under Section 125(3) of Code of Criminal Procedure, a Magistrate could have issued a warrant for levying the amount due in the manner provided for levying fines and could, sentence such person to imprisonment for a term which could extend to one month. It was further pointed out that this amount has to be recovered only as fine. Under Section 421 of Code of Criminal Preceding the manner of recovery of fine was to issue a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from movable or immovable property, or both, of the defaulter. So the contention was that the learned Magistrate erred in issuing a warrant of attachment outside the district of Aligarh in district Agra. He had no jurisdiction to get his warrant executed in district Agra. His order for attachment of future salary which accrued to the revisionist was also illegal as future salary was not attendable in execution of such warrant as was held in Baldevi v. Ram Nath, reported in AIR 1955 Rajasthan 61. In that case, there was a maintenance order in favour of wife. The arrears of maintenance were sought to be recovered by the wife through an application for attachment of future salary of the husband. It was held that future salary was not immovable property of the husband and as such the attachment sought by wife was impermissible. 5. In that case, there was a maintenance order in favour of wife. The arrears of maintenance were sought to be recovered by the wife through an application for attachment of future salary of the husband. It was held that future salary was not immovable property of the husband and as such the attachment sought by wife was impermissible. 5. On behalf of wife-opposite party, it was pointed out that this contention is irrelevant as the revisionist did not prefer any objection against the quantum of maintenance which fall due; he wrongly urged that opposite party was blame worthy in getting the arrears accumulated; he offered to pay them in the instalments, he had already been paying the sum through such deduction. It is for this reason that the lady is not executing the order passed in civil court as the husband cannot be obliged to pay the amount of Rs. 300/- per month twice, viz., once in criminal court and another in civil court. 6. Thus, the contention of learned Advocate for revisionist is wide off the mark. The revision is directed against order dated 31.1.1983, quoted by me here-in-above. This revision is not directed against the earlier order dated 4.11.1982 when the attachment order was drawn and that order was complied with even upto March, 1985. Under such circumstances, I am not called upon to examine the validity of the order dated 4.11.1982 against which no revision was timely filed nor that order in the subject matter in controversy now. So this contention is devoid of force. As regards the mode of the execution of warrant, in case of default, the Magistrate in Aligarh was himself competent to execute the same through coercive process. He could have issued its copy to opposite party for enforcement of the order of maintenance in Agra under Section 128 of Code of Criminal Procedure. He could have got it executed in Agra also after obtaining an endorsement by the District Magistrate Agra on the warrant under Section 482 of Code of Criminal Procedure. When such warrant is sent, it shall be open to the revisionist to prefer an objection against the attachment of his future salary. The next contention was that the impugned order was not speaking order and did not amount to a judgment as contemplated by Section 354 of Code of Criminal Procedure. When such warrant is sent, it shall be open to the revisionist to prefer an objection against the attachment of his future salary. The next contention was that the impugned order was not speaking order and did not amount to a judgment as contemplated by Section 354 of Code of Criminal Procedure. It did not give all the points raised in objection by revisionist. Thus it was not speaking order and has to be set aside on that score. 7. 1 have seen the counter affidavit which goes to show that the Magistrate found on scrutiny of the facts that the opposite party was not blame-worthy for the delay in accumulation of the maintenance. She was hampered from recovering the arrears of maintenance by the husband ' who repeatedly procured stay orders from the higher courts resulting in accumulation of arrears. He had no objection for the payment of the accumulated amount of arrears of maintenance in two instalments. Having considered all these points learned Magistrate could have disposed of the matter by a brief order. He has done that and that order cannot be regarded as illegal. It was not an order for fixation of maintenance. Parties did not adduce any evidence in support of their rival contentions also. The objection simply contained a prayer for instalments. Under such circumstances, I do not find any illegality or procedural irregularity in the impugned order. 8. As regards the mode of execution of the warrant made observations above in accordance with law. So, the impugned order must stand. The revision as devoid of force. The ad interim order dated 14.2.1 herewith.