Magistrate Can Issue Warrant For Recovery Of Defaulted Maintenance U/S 125 CrPC As Arrears Of Land Revenue: Allahabad High Court

One Usha Devi obtained ex-parte order against the plaintiff (appellant herein) for getting maintenance under Section 125 Cr.P.C. in the Court of the Metropolitan Magistrate, Kanpur Nagar in January 1982. The plaintiff got to know about the ex parte order and thus, he made an application to the Metropolitan Magistrate, Kanpur Nagar seeking to set aside the sale. The same was allowed in May 1982 and the ex parte maintenance order was set aside.

In the meantime, the defendant purchased the plaintiff's immovable property in December 1982. Thereafter, the plaintiff's wife applied for the recovery of dues under the ex parte maintenance order.

Now, it was the plaintiff's case that after the maintenance order had been set aside in May 1982, the sale of the plaintiff's property in December 1982 was one made without jurisdiction, as there was no maintenance order in existence then to execute.

After his suit was dismissed by the District Judge of Varanasi, he moved to the High Court arguing that it was not open to the Magistrate, who had the execution of the ex parte maintenance order before him, to enforce it by forwarding a recovery certificate to the Collector.

As such, it was argued that all proceedings taken by the Revenue Authorities at Varanasi, pursuant to the recovery certificate issued by the Magistrate for enforcement of the ex parte maintenance order, were without jurisdiction.

On the other hand, the defendant who brought the property in question argued that there was jurisdiction under the law available to the Magistrate to issue a recovery certificate to the Collector by virtue of the provisions of Section 125(3) CrPC.

High Court's order

At the outset, the Court conjointly read Sections 125(3) and 421(1) of the CrPC to note that it is open to the Magistrate to enforce an order of maintenance that remains uncomplied with, for every breach of it, by the issue of a warrant for levying the amount due in the manner provided for levying fines

"It is the discretion of the Magistrate, before whom an application for enforcement of the maintenance order comes up, either to issue a warrant for the levy of the amount by attachment and sale of movables of the defaulter under Section 421(1)(a) of the Code, or to issue a warrant to the Collector, authorizing him to realize the amount as arrears of land revenue. It is open to issue both kind of warrants simultaneously also," the Court remarked.

The Court further noted that Sub-Section (3) of Section 421 obliges the Collector, whenever a warrant is issued to him, to recover any amount, that qualifies for a fine, as arrears of land revenue in accordance with the law, treating the warrant to be a recovery certificate issued under the law relating to land revenue recovery.

Against this backdrop, the Court rejected the argument of the plaintiff that the Magistrate had no power to issue a warrant to the Collector for the recovery of the amount of maintenance in default as arrears of land revenue. In view of this, the appeal failed and was dismissed with costs.

Appearances:

Counsel for Appellant :- S. Chatharjee,Santosh Kumar,Satya Deo Ojha, Saurabh Srivastava

Counsel for Respondent:- Akhileshwar Mishra, Aniruddh Kumar

Case title - Rama Nand v. Hira Lal [SECOND APPEAL No. - 1698 of 1990]

Case Citation: 2022 LiveLaw (AB) 477

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