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Jharkhand High Court · body

2012 DIGILAW 561 (JHR)

Samir Sharma v. State of Jharkhand

2012-04-12

R.R.PRASAD

body2012
JUDGMENT By Court.-Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party no. 2. 2. An application was filed for maintenance under Section 125 of the Code of Criminal Procedure by Premlata Devi @ Krishna Devi on her behalf as well as on behalf of her four children against her husband Amar Kumar Sharma (since died). That application was allowed, vide order dated 1.7.2002 whereby maintenance of Rs. 500/- per month was awarded each to Premlata Devi @ Krishna Devi and to her four children with effect from the date of filing of the petition, i.e. 25.1.1990 till 22.9.2002 on which date husband died, so far it relates to Premlata Devi @ Krishna Devi but so far children are concerned, till attainment of their majority. Subsequently, an application was filed on behalf of Smt. Premlata Devi @ Krishna Devi on 1.7.2002 for enforcing the order of maintenance by making a prayer for attachment of the property of her late husband. On that application an order was passed on 16.8.2002 whereby distress warrant was issued for realization of the amount accrued towards maintenance allowance Thereafter an application was filed by these two petitioners, Samir Sharma and Sheela Sharma @ Shila Basir raising objection over the issuance of distress warrant by taking plea that the property sought to be attached never belonged to the husband of Premlata Devi @ Krishna Devi, rather it exclusively belonged to them as those properties had come to their share by way of decree of the court passed in a partition suit. At the same time, one Bijoy Kumar Sharma claimed• to be the son of late Amar Kumar Sharma by filing an application took same type of objection which had been taken by the aforesaid two persons. However, no order was passed on an application filed by Samir Sharma and Sheela Sharma @ Shila Basir whereas an order was passed on 26.11.2002 by the Principal Judge, Family Court, Ranchi in Misc Case No.9 of 1991 on an application which had been filed by Bijay Kumar Sharma whereby contention raised by Bijay Kumar Sharma was rejected by holding that estate of the deceased (husband of Premlata Devi @ Krishna Devi) can always be burdened with the charge of the above arrears of maintenance allowance. Subsequently, an application was filed by the said Premlata Devi @ Krishna Devi on 16.1.2003 wherein description of the properties were given and upon that application, an order was passed for issuance of a certificate for realization of the amount from the properties descriptions of which were given in the petition. Both the orders dated 26.11.2002 and 16.1.2003 are under challenge. 3. Learned counsel appearing for the petitioners\submits that when a distress warrant was issued by the court for realization of the amount from the property belonging to the petitioners, an objection was taken but no order was' passed on his application, rather an order was passed upon same type of application filed by Bijay Kumar Sharma on 26.11.2002 whereby it was held that estate can always be burdened with the charge of the above arreas of maintenance allowance and therefore, an order passed by the court can be executed against the estate of the deceased Amar Kumar Sharma for realizing the amount as arrears of land revenue from the movable/immovable properties of late Amar Kumar Sharma. Thereupon, an application was tiled by a Premlata Devi @ Krishna Devi wherein description of the properties were given which belonged to these petitioners as those properties had come to the share of these two petitioners by way of decree passed in a partition suit brought by these petitioners as well as the mother and the court without hearing the petitioners passed the order for issuance of the certificate which is quite illegal as the petitioners were never afforded with an opportunity to be heard and hence, the order passed by the court below on 16.1.2003 is fit to be set aside. 4. Mr. Anil Kumar, learned counsel appearing for the opposite party no. 2 submits that the properties which the petitioners are claiming to be their own, in fact, belonged to the father of the petitioner no. 4. Mr. Anil Kumar, learned counsel appearing for the opposite party no. 2 submits that the properties which the petitioners are claiming to be their own, in fact, belonged to the father of the petitioner no. 1 as well as deceased husband of Premlata Devi @ Krishna Devi and as such, petitioner's husband should have been made party in the partition suit but he had never been made party in that partition suit and in that situation, any decree passed by the court on a partition suit would not be binding upon the successor of the deceased and under this situation, the court is absolutely right in passing the order dated 16.1.2003 as the property would be assumed as joint family property. 5. The aforesaid submission was replied by Mr. Das by stating that when Prern1ata Devi @ Krishna Devi during lifetime of her husband had filed a Title Suit bearing no. 45 of 1992 for a declaration of share of her husband in a joint family property her husband in the said case did depose as witness that Premlata Devi @ Krishna Devi never happened to be her wife and that he was not made party in the partition suit brought by those two petitioners and their mother as he had already been given share in other property and in his evidence, he had accepted that partition took place in between these two petitioners and their mother. 6. 6. There has been no dispute over the proposition of law that in a case of death of husband, order of maintenance is enforceable against the estate which can be enforced in terms of the provision as contained in Section 125(3) read with Section 421 of the Code of Criminal Procedure which reads as under:- Section 125(3), If any person so ordered fails without sufficient case to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for" levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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: Provided 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: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. 421. 421. Warrant for levy of fine.-(1) When 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 ways, 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 realize the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone th~ whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of subsection (1) are to be executed; and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. 7. In this situation, their remains no doubt that arrears of the amount of maintenance can be realized as arrears of land revenue from the movable/immovable property of the defaulter but before realizing charge is to be fixed upon the property from which the amount would be realized. 8. 7. In this situation, their remains no doubt that arrears of the amount of maintenance can be realized as arrears of land revenue from the movable/immovable property of the defaulter but before realizing charge is to be fixed upon the property from which the amount would be realized. 8. In this context, I may refer to a decision rendered in a case of Shrimati Rani Bai vs. Shri Yadunandan Ram and Another [ (1969)1 SCC 604 ] wherein it has been held that widow of the predeceased son is entitled to receive maintenance so long as she did not re-marry from the estate of her father-in-law and although her claim for maintenance was not a charge upon the estate until it has been fixed. 9. Thus, it is quite evident that the arrears of maintenance or the amount of maintenance can very much be realized from the estate of deceased or father-in-law if the property is in joint-ness provided charge is fixed on the said property. 10. The court vide order dated 26.11.2002 did hold that amount of the maintenance can be realized from the estate though he has not stated from which estate but it is obvious that he meant it the estate of the deceased but by subsequent order dated 16.1.2003, he passed an order for issuance of a certificate for the purpose of realizing the amount of the maintenance as land revenue, though the petitioners before that had made a claim by filing an application that the properties in question exclusively belonged to them which claim had never been adjudicated by the court either by order dated 26.11.2002 or by order dated 16.1.2003. Moreover, the petitioners had never been heard on the application, upon which an order was passed on 16.1.2003 and therefore, the order dated 16.1.2003 since has been passed without hearing the petitioners and without determining the right of the petitioners, that order is hereby set aside and the matter is remitted back for determining the issue as to whether charge can be fixed upon the properties of the petitioners or not. 11. Accordingly, this matter is remitted back to the court concerned so that it may pass a fresh order in accordance with law after hearing both the parties within a period of three months from the date of receipt production of a copy of this order. 12. 11. Accordingly, this matter is remitted back to the court concerned so that it may pass a fresh order in accordance with law after hearing both the parties within a period of three months from the date of receipt production of a copy of this order. 12. Let the lower court record be transmitted to the court concerned immediately. 13. It is made clear that the parties are at liberty to file their respective applications.