Matha vs Smt. Kaula

T.U. Mehta, C.J.—This application is preferred by the Petitioner-husband against the Respondent-wife under Article 227 of the Constitution of India read with Sections 397 and 401 of the Code of Criminal Procedure challenging the order of the Sub-Divisional Judge, Theog, dated 30-11-1978, by virtue of which he has issued a warrant for the levy of Rs. 5172.42 as being the arrears of maintenance about the Respondent-wife by attaching the movable properties of the Petitioner-husband.

Short facts of the case which form the background of this application are that the Respondent Smt. Kaula, claiming to be the wife of tile Petitioner, filed an application for obtaining maintenance for herself and her son u/s 488 of the Code of Criminal Procedure, 1898, on 10-8-1973. This application was flied before Nyaya Panchayat of the village Jais situated in Tehsil Theog u/s 203(2) of the Himachal Pradesh Panchayati Raj Act, 1968, which at the relevant time was in the following terms:

Application for maintenance u/s 488 of the Code of Criminal Procedure shall be heard and decided by the Nyaya Panchayat. A Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf.

As a result of this application, the Nyaya Panchayat u1timately awarded an amount of maintenance for the Respondent-wife and her son at the rate of Rs. 90/- per month. This order is dated 25-2-1974.

Thereafter on 17-1-1975 the Respondent-wife filed execution application to obtain the amount of maintenance in arrears, but since this application was not originally filed to the Panchayat, the same was dismissed on 2-2-1978.

Before the said dismissal, the Respondent-wife filed a fresh execution application on 8-11-1977 before the Nyaya Panchayat obviously apprehending that the filing of the previous execution application would not be treaed as legal. On this next execution application filed before the Nyaya Panchayat, a notice was issued to the Petitioner-husband. It seems, however, that he refused to accept the notice with the result that the Nyaya Panchayat, finding it difficult to execute its order awarding maintenance, forwarded the said order to the leared Sub-Divisional judge for execution u/s 242 of the Panchayati Raj Act, 1968. This order was made by the Panchayat on 9-1-1978. It is in this manner that the learned Sub-Divisional Judge, Theog, came to deal with this execution application.

Before the learned Sub-Divisional Judge, the Petitioner-husband raised certain contentions the principal of which was that under the second proviso attached to Sub-section (3) of Section 488 of the Code of Criminal Procedure, no warrant shall be issued for the recovery of any amount of maintenance due unless application is made to the Court to levy such amount within the period of one year from the date on which it became due. The present Petitioner, therefore, contended before the learned Sub-Divisional Judge that the warrant in execution can be issued only for that amount of maintenance which has become due for one year before the date of execution. The learned Sub-Divisional Judge rejected this contention on the ground that the above referred second proviso attached to Sub-section (3) of Section 488 of the Code of Criminal Procedure had no application to the facts of the case in view of the provisions contained in Sections 203 and 230 of the Panchayati Raj Act. Being aggrieved by this order, the Petitioner-husband has preferred this application.

In this application the learned Advocate of the Petioner husband has raised two points of law. The first is that the Nyaya Panchayat had no jurisdiction to forward the order of maintenance to the Sub-Divisional Judge for execution under Sub-section (2) of Section 242 of the Panchayati Raj Act, because that Sub-section contemplaed the forwarding for the purpose of execution only a decree and not an order. In this connection it was pointed out that the word "decree" is defined in Clause (ii) of Section 3(1) of the Panchayati Raj Act as having the same meaning as in Section 2 of the CPC 1908 and since the order of maintenance is passed u/s 488 of the Code of Criminal Procedure, that order cannot be treated as a decree. It was, therefore, contended that the order passed by the learned Sub-Divisional Judge issuing warrnat of execution is without jurisdiction.

The second contention which was raised was that since the order which is sought to be executed is the one passed u/s 488 of the Code of Criminal Procedure, the second proviso attached to Sub-section (3) of Section 488 would come into play and, therefore, the amount of maintenance in arrears which is more than the arrears of one year before the date of execution, cannot be realised by issuing a warrant.

So far as the first contention is concerned, it would be necessary to make a reference to the terms in which Section 242 of the Panchayati Raj Act, 1968 has been enacted. This section is in the following terms:

(1) A deceree or order passed by a Nyaya Panchayat shall be executed in such manner as may be prescribed. If the Defendant''s property is situated outside the jurisdiction of the Nyaya Panchayat passing such order or decree, it may transfer the decree or order for execution in the prescribed manner to the Nyaya Panchayat within whose jurisdiction the property may be situated and if there be no such Nyaya Panchayat then to the Court of the Sub-Divisional Judge within whose jurisdiction it may be situated.

(2) If a Nyaya Panchayat finds any difficulty in executing a decree, it may forward the decree to the Sub-Divisional Judge and the Sub-Divisional Judge shall then execute the decree as if it were a decree passed by him.

(3)....

It is apparent from the language employed by the legislature in Sub-sections (1) and (2) of this Section that while Sub-section (1) makes a reference to a "decree" as well as an "order", Sub-section (2) makes a reference only to a "decree". In view of this difference in the language of both these Sub-sections, the contention which was raised is that if an order does not amount to a decree as defined by the Act, then that order cannot be transferred to a Sub-Divisional Judge for execution.

It is, no doubt, true that there is the above stated difference in the language employed by the legislature in the two Sub-sections of Section 242. Therefore, the real question is whether it was the intention of the legislature to provide that only an order which amounts to a decree can be sent to tie Sub-Divisional Judge for execution or whether every type of order passed by the Panchayat can be so sent to the Sub-Divisional Judge for execution.

In order to obtain an answer to this question it would be necessary to refer to some more provisions of the Panchayati Raj Act. One such provision is contained in Sub-section (2) of Section 203 which is already quoted by me above. Another relevant provision is Section 230 which relates to the procedure and power of the Panchayat to "ascertain truth". This Section 230 is in the following terms:

(1) The Nyaya Panchayat shall receive such evidence in a suit, case or proceeding as the parties may adduce and may call for such further evidence section is in the following terms:

(1) A deceree or order passed by a Nyaya Panchayat shall be executed in such manner as may be prescribed. If the Defendant''s property is situated Out side the jurisdiction of the Nyaya Panchayat passing such order or decree, it may transfer the decree or order for execution in the prescribed manner to the as, in their opinion, may be necessary for the determination of the points in issue.

(2) The Nyaya Panchayat may make local investigation in the village to which the dispute relates.

(3) It would be the duty of the Nyaya Panchayat to ascertain the facts of every suit, case or proceeding before it by every lawful means in its power and thereafter to make such decree, or order with or without costs as it may seem just and legal.

(4) The Nyaya Panchayat shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908 the Indian Evidence Act, 1872, tile Code of Criminal Procedure, 1898, and the Limitation Act, 1963, shall not apply to any suit, case or proceeding in a Nyaya Panchayat except as provided in this Act or as may be prescribed.

A close scrutiny of Section 230 shows that it contemplates the same sort of procedure irrespective of the question whether the matter before the Nyaya Panchayat is of a civil nature or of criminal nature. Tile Section uses the expression "a suit, case or proceeding" and treats all the three categories as at par and provides the same procedure with regard to all the three categories. This section further does away with the technical provisions contained in tile Code of Civil Procedure, Code of Criminal Procedure, Indian Evidence Act and the Limitation, Act. In other words, the procedure which is contemplated by Section 230 of the Panchayati Raj Act is of a special type, and considering the functions of a Nyaya Pancha which is expected to dispense justice at the gross root, it does away with the technicalities of legal procedure. This being so, it does not make any distinction between an order which amounts to a decree and the one which does not amount to a decree. The scheme of Section 230 and other Sections suggests that the technical distinction between an order amounting to a decree and the one not amounting to a decree is clone away with. Under the circumstances, the definition of decree given in Clause (ii) of Section 3(1) applies only to a decree simplicitor, but it cannot be said that the statute makes a technical distinction between an order amounting to a decree and an order not so amounting to a decree.

It is in this context that we have to examine the relevant rule framed by the rule making authority under the Panchayati Raj Act. These rules are called the Himachal Nyaya Panchayat Rules, 1972. Rule 61 thereof provides for the procedure which is to be adopted in case of applications for execution. This Rule 61 is in the following terms:

(1) The decree or order holder may, after passing of the decree or order put in an application for its execution on payment of the same fee as is provided for the institution of the original suit, case or proceedings before the Nyaya Panchayat which passed the decree or order, and the same shall be included in the costs.

(2) The Nyaya Panchayat shall issue a notice to the opposite party to pay up the decretal amount or comply with the order within thirty days or such further time not exceeding three months as it may deem fit to allow after the notice is served. If the amount is not paid or order not complied with within the period specified, the decree or order shall be sent to the Sub-Divisional judge, as the case may be, for execution as provided in Sub-section (2) of Section 242 of the Act and in case of civil decree the judgment debtor shall be liable to pay interest on the decretal amount at six per cent per annum from the date of institution of the suit till the date of realisation of the decretal amount.

The relevant portion of this rule is contained in Sub-rule (2) which says that if the amount ordered to be paid by the Panchayat is not complied with, the same shall be sent to the Sub-Divsional Judge for execution as provided by Sub-section (2) of Section 242 of the Act. It is worthy to note that according to Sub-rule (2) quoted above, any order can be sent to the Sub-Divisional judge for execution irrespective of the consideration whether it a mounts to a decree or not and this has been in spite of the fact that Sub-section (2) of Section 242 makes referrence only to a decree and not to an order. In my opinion, this is consistent with the provisions of Section 230, which is referred and discussed above to show that it makes no distinction between the two types of orders nor between a decree and an order.

Under these circumstances, it is open to the Nyaya Panchayat under Sub-section (2) of Section 242 to send for execution any order, passed by it by virtue of the powers which it has u/s 230 of the Act, to the Sub-Divisional Judge.

In this connection it is worthy to note that the order in question is contemplated to be sent for execution not to a Magistrate, but to a Judge. The expression "Sub-Divisional Judge" has been defined in Clause (g) of Section 3(1) of the Panchayati Raj Act as meaning a Sub-Judge of the District or Sub-Division as the case may be, in which the Nyaya Panchayat is constituted. This definition of the expression "Sub-Divisional Judge", therefore, clearly shows that every order passed by a Nyaya Panchayat pursuant to the provisions contained in Section 230 can be sent for execution to a Sub-Judge of the District or Sub-Division who is working on the civil side. If the order of maintenance passed by the Nyaya Panchayat u/s 488 of the Code of Criminal Procedure Was to be treated merely as an order passed in criminal proceedings, the legislature would not have provided for its execution by a Sub-Judge. This is, therefore, another reason to find that any order irrespective of tile question whether it amounts to a decree or not, can be forwarded by a Nyaya Panchayat to a Sub-Divsional Judge for execution ''under Sub-section (2) of Section 242. I am supported in the view which I am taking by the decision given by the Himachal Pradesh Bench of Delhi High Court in Dhani Devi v. Tulsi Ram reported in 71 (1969) P.L.R. (Delhi Section) 189.

In view of the above discussion, it is not possible to accept the Petitioner''s contention that the learned Sub-Divisional Judge who has passed the impugned order has no jurisdiction to execute the same under Sub-section (2) of Section 242.

So far as the second contention is concerned, it was urged that under the second proviso attached to Sub-section (3) of Section 488 of the Code of criminal Procedure, no warrant could be issued for realising the maintenance which is more than one year old. It is true that if the second proviso to Sub-section (3) of Section 488 applies to the facts of tile case, then only the amount of arrears of one year''s maintenance could be realised. However, the above discussion shows that the procedure contemplated by the Code of Criminal Procedure has no application so far as Section 230 is concerned. But what is more pertinent to note in this case is that once an order or decree is forwarded to a Sub-Divisional Judge for execution under Sub-section (2) of Section 242 of the Act, the law specifically provides that such order or decree must be executed by the said Sub-Divisional Judge "as if it were a decree passed by him". In other words, the order which was sent to the learned Sub-Divisional Judge, Theog, for execution should be treated as if it were a decree passed by him, and should be executed as such. Now if this is so, tile second proviso attached to Sub-section (3) of Section 488 of the Code of Criminal Procedure would have no application. Therefore, even this contention raised by the Petitioner should be rejected.

The result, therefore, is that this Petition fails. The same is accordingly dismissed.