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1993 DIGILAW 856 (MAD)

Dhana Singh v. Mrs. Stella and another

1993-12-14

ABDUL HADI, SRINIVASAN

body1993
Judgment :- Srinivasan, J. This appeal is taken up with the consent of counsel on both sides. It is directed against an order dated 5. 1992 passed by the Principal Judge, Family Court, Madras, in M.P.No.l067 of 1991 in M.C.No.335 of 1988. 2. M.C.No.335 of 1988 was a petition for maintenance under Sec. 125, code of Criminal Procedure, filed by the respondents herein, the first respondent being the wife of the petitioner and the second respondent being his son, who was minor at the time of filing of the petition. The court below passed the order on 16. 1989 directing payment of maintenance at the rate of Rs.500 to the first respondent herein and Rs.300 to the second respondent herein with effect from 11. 1988. The respondents herein filed M.P.No.1067 of 1991 stating that no amount of maintenance has been paid, excepting a sum of Rs.7,210 which was paid pursuant to an order of attachment made in M.P.No.612of 1989.That petition, M.P.No.612of 1989 was disposed of on 110. 1991. The present M.P.No. 1067 of 1991 has been filed for recovery of Rs.20,800 being the amount due from 8. 1989 to 10. 1991. This petition was filed on 310. 1991. The court below passed an order on 5. 1992 directing attachment of salary of the appellant to the extent of Rs.1,000 per mensem. It is the said Order, which is challenged in this appeal. 3. The first contention of learned counsel for the appellant is that in a petition under Sec. 125, Crl.P.C, no warrant can be issued by the court for recovery of any amount due under the said section, unless an application has been made to levy such amount within a period of one year from the date on which it became due. The contention appears to be well founded. The petition was filed on 310. 1991. Hence the respondents will be entitled to claim maintenance under the warrant only from 11. 1990 and the amount due for that one year comes to Rs.9,600 counsel on both sides agree that the said sum of Rs.9,600 has since been paid. The court below has directed the appellant to pay a sum of Rs.20,800and issued the warrant, which is erroneous. The warrant could have been issued only for Rs.9,600 as pointed out above. That amount having been paid already, it cannot be executed further. The court below has directed the appellant to pay a sum of Rs.20,800and issued the warrant, which is erroneous. The warrant could have been issued only for Rs.9,600 as pointed out above. That amount having been paid already, it cannot be executed further. Hence this contention is accepted inasmuch as the order of the court below is erroneous in directing recovery of arrears in a sum of Rs.20,800 being due from 8. 1989 to 10. 1991. 4. The second contention of learned counsel for the appellant is that the second respondent attained majority on11. 1990 and there after he is not liable to pay any maintenance to the 2nd respondent. There is a fallacy in this contention. [The order passed by the Family Court on 16. 1989 does not limit the grant of maintenance to the second respondent till the date of his attaining majority. The order merely says that the 2nd respondent must be paid maintenance at the rate of Rs.300, p.m. from 11. 1988. The order will not vanish automatically on the 2nd respondent attaining majority. If the appellant is keen on stopping payment of maintenance to the 2nd respondent, he should have applied to the Family Court under Sec.127, Crl.P.C, for appropriate orders regarding the modification of the earlier order. Not having done so, it is not open to the appellant to contend that no warrant can issue for executing the order of maintenance already made on 16. 1989. However, it is open to the appellant to seek appropriate modification of the earlier order dated 16. 1989 passed in M.C.No.335 of 1988. Likewise, it is open to the respondents to seek for execution for the subsequent period commencing from 11. 1991. It is stated that for that period petition has already been filed. If that be so, the court below is directed to dispose of the same in accordance with law. 5. With the above directions, the appeal is partly allowed and partly dismissed. The parties will bear their respective costs. In view of the disposal of the appeal, C.M.P.No.7547 of 1992 is dismissed.