Kochukunju Narayanan vs Kunjali Sarojakshi

Sankaran, J.—The question for decision in this appeal is whether a person who has filed an application for adjudicating him an insolvent, is entitled to be released from jail where he is undergoing imprisonment in enforcement of an order passed against him u/s 488 of the Code of Criminal Procedure,

The Appellant is the husband of the Respondent in whose favour an order for maintenance has been passed by the Sub-Divisional Magistrate at Qulin in Miscellaneous Case No. 20/1950 on the file of his Court, since the Appellant failed to comply with that order the Respondent filed an application before that Court for enforcement of the order, and the Magistrate on being satisfied that the Appellant had failed without sufficient cause to comply with/the order to pay maintenance to his wife at turreted specified, directed the Appellant to be impugned in jail.

this stage the Appellant filed insolvency petition No. 77/1955 before the District Court at Qulin paying that on account of his inability to pay his debts he may be adjudicated an insolvent. The item of debt shown in that application'' represented the arrears of maintenance which had become payable by virtue of the order in M. O. No. 20/1950 already referred to. Along with the insolvency petition the Appellant filed a separate petition C. M. P. No. 6656 dated 31-10-1955, praying that he may be released from jail pending final orders on the insolvency petition. The Respondent on receipt of notice of that Petition objected to the release of the Appellant from jail. After a due consideration of the contentions of the parties, the lower court came to the conclusion that the release prayed for by the Appellant-Petitioner can, not be granted and accordingly dismissed his petition. The appeal is against that order.

Since no order adjudicating the Petitioner as an insolvent has as yet been passed, his present petition cannot be treated as one for a protection order as contemplated by Section 31 of the Provincial Insolvency Act, in respect of any debts payable by him. The petition is obviously one u/s 23 of that Act. Clause 1 of that section States that:

At the time of making an order admitting the petition or at any subsequent time before adjudication, the Court may, if the debtor is under arrest or imprisonment in execution of the decree of any Court for the payment of money, order his release on such terms as to security as may be reasonable and necessary.

The order in M. C. 20/1950 on the file of the Sub-divisional Magistrate''s Court at Qulin, cannot be deemed to be a decree of court, nor can it be said that the Appellant-Petitioner is undergoing imprisonment in execution of a decree of any Court. Clause 1 of Section 23 of the Provincial Insolvency Act cannot, therefore, in its very terms be invoked by the Petitioner. Section 44 of the Insolvency Act also indicates that the legislature has maintained a clear distinction as between a liability under an order for maintenance made u/s 488 of the Code of Criminal Procedure and other classes of debts in respect of which protection is afforded by the provisions of the Insolvency Act.

Clause 1(d) of Section 44 states that an order of discharge shall not release the insolvent from any liability under an order for maintenance made u/s 488 of the Code of Criminal Procedure 1898. Clause 3 of that section prescribes the mode in which such an order may be enforced, and the procedure laid down therein is the procedure prescribed for the levying of fine imposed by a criminal Court. Clause 3 runs as follows:

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 month''s allowance 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.

Under this clause it is for the Magistrate to decide whether the failure to comply with the order passed under the section is without sufficient cause. The conclusion reached by the Magistrate as to whether the failure to comply with the order was with or without sufficient cause. Cannot be interfered with by the insolvency court which has no appellate jurisdiction over the Magistrate''s orders.

It has also to be remembered that the insolvency of the person against whom an order u/s 488 of the Code of Criminal Procedure has been passed, cannot by itself be taken to conclusively establish sufficient cause within the meaning of Clause 3 of that section justifying a failure to comply with the order passed under that section. No doubt the effect of an order adjudicating him an insolvent will be to vest his properties in the Official Receiver for the purpose of distribution among the several creditors. But Clause 5 of Section 28 of the Insolvency Act states that the properties thus vesting in the Receiver shall not include any property which is exempted by the CPC or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree. Section 60 of the CPC enumerates the different items of properties which are thus exempted from'' attachment and sale in execution of decrees, and one or more of these items may be available to the insolvent for the purpose of enabling him to discharge his obligation of maintaining his wife and minor children.

The legislature has attached greater importance to this obligation and that appears to be the reason why the failure to discharge that obligation without sufficient cause is meted out with penal consequences as provided in Clause 3 of Section 488 of the Code of Criminal Procedure. Resort to the insolvency Court cannot afford an escape from such penal consequences.

The decisions in Tokee Bibee v. Abdool Khan, ILR 5 Cal 536 (A) and In re, S. Yahia, AIR 1986 Mad 793 (B) were cited in support of the Appellant''s contention that arrears of maintenance payable under a Magisterial order u/s 488 of the Code of Criminal Procedure is a debt provable in insolvency and a protection order in respect of the same can be given in favour of the debtor. Reliance was also placed on the ruling in Halfhide (Mr.) Vs. Halfhide (Mrs.), in support of the position that an order adjudicating the husband as an insolvent is conclusive of the fact that he is unable to pay his debts and that he cannot, therefore, be found to be guilty of willful neglect in not paying the maintenance order u/s 488 of the Code of Criminal Procedure.

For the reasons already stated we are unable to accept as correct the view taken in these cases. We may also state that there is a preponderance of authority against the view taken In these three cases. In Pt. Shyama Charan Vs. Mt. Anguri Devi it was ruled that the mere fact that the husband has been adjudicated an insolvent, does not show that he is unable to pay for the maintenance of his wife or that the order of adjudication constitutes sufficient cause for non-payment of the maintenance.

It was further ruled in that case that the arrest or detention against which a protection order could be claimed u/s 31 of the Insolvency Act refers to arrest or detention in pursuance of an order of a civil Court passed in execution a decree of such Court but not to arrest in execution or a criminal court process or to detention under a sentence of imprisonment passed by a criminal Court.

A similar question arose for consideration in Muni Krishnayya v. Akulamma AIR 1940 Mad 697 (E) and there it was held that a person who has been sentenced under Clause 3 of Section 488 of the Code of Criminal Procedure cannot be deemed to be a person under "imprisonment in execution of the decree any court for the payment of money" as contemplated u/s 23 of the Provincial Insolvency Act and that the Magistrate''s order for imprisonment cannot be cancelled merely for the reason of the insolvency of the individual concerned.

The view taken by the Bombay High Court in Mahammed Hussein v. Emperor AIR 1940 Bom 344 (F) is also to the effect that a protection order u/s 25 of the Presidency Towns Insolvency Act does not protect the insolvent against the special Statutory power of committal given to a criminal Court u/s 488. The view taken by the Calcutta High Court in Radharani Dassi v. Mati Lal, AIR 1940 Cal 509 (G) is that an order of adjudication in itself is not a rebuttal of an allegation that the insolvent has failed without sufficient cause to comply with the order of the Magistrate directing the payment of maintenance.

It was also pointed out that on presentation of an application for distress warrant the duty of the Magistrate is to decide in the first place whether the person against whom the adjudication is made has failed without sufficient cause to comply with the order, and if that fact is established, to proceed as directed by Clause 3 of Section 488 of the Code of Criminal Procedure. In Emperor v. Amir Khan AIR 1948 Nag 410 (H) also it was ruled that the insolvency of a person in itself is no bar to a proceeding under Clause 3 of Section 488 of the Code of Criminal Procedure.

In the result, this appeal is dismissed with costs.