Daulat Ram vs Dhapi

G.S. Chahal, J.

Daulat Ram petitioner seeks the quashing of the order dated 3.2.1990, Annexure P1, passed by the learned Additional Chief Judicial Magistrate, Sirsa, directing the issue of nonbailable warrants against the petitioner and the subsequent proceedings taken thereon and also the order dated 17.4.90, Annexure P2, passed by the Additional Sessions Judge, Sirsa.

Smt. Dhapi respondent No. 1 is the wife and Prem (minor) is the daughter of the petitioner. They are seeking the execution of an order under section 125 of the Criminal Procedure Code for realising the maintenance amount due. A total amount of Rs. 11,700/ had been claimed The Additional Chief Judicial Magistrate issued a notice of the execution petition and the respondent husband filed objections. The Additional Chief Judicial Magistrate, however, without determining the objections, and resorting to attachment of the property, ordered the arrest of the husband for realising the arrears of maintenance allowance.

The learned counsel for the petitioner has today filed a gist of the Zimni orders of the Court since 16,1989 onwards, which clearly indicate that no process was issued for attachment and sale of the property of the husband, but straightaway nonbailable warrants for his arrest were issued. In Karnail Singh v. Gurdial Kaur, 1973 PLR 199, P. S. Pattar, J. while considering similar provisions under the old Code, held that, in the first instance, warrants of attachment and sale of the property to satisfy, the demand of arrears of maintenance should be issued. It is only if the whole or a part of it remains unpaid after the execution of the warrant, that imprisonment should be ordered. The warrants of attachment and sale is a condition precedent to the issue of a warrant for imprisonment. The warrant for arrest directed to be issued without first having recourse to attachment and sale of the property of the respondent is illegal. I endorse this view and hold that the order of the Additional, Chief Judicial Magistrate, issuing the warrant of arrest against the petitionerhusband was illegal. I hereby accept the criminal miscellaneous and the quash the impugned order.

The execution petition shall proceed for effecting recovery through attachment and sale of the property of the petitionerhusband. In case the whole or any part of the arrears of maintenance remains unsatisfied as a result of attachment and sale proceedings, the learned Chief Judicial Magistrate shall be at liberty to issue warrant of arrest under the Code of Criminal Procedure.

JUDGMENT accordingly.