SHYAM BEHARI LAL Vs. SHRIMATI DAYAWATI

JUDGEMENT

(1.) This is an application in revision against an order of a Magistrate issuing a warrant under Sec. 488, Cr. P. C. for recovery of Rs. 1080.00 maintenance allowance payable to the opposite party. The allowance is payable on the 16th of every month. The opposite party applied on 27-4-1954 for recovery of arrears of the maintenance allowance. The application remained pending for a long time and was disposed of on 2-6-1956, through the issue of a warrant for the arrears that had fallen due upto 16-5-1956. Under Sec. 488 (3) he could not issue a warrant for the recovery of any amount unless an application was made to him to levy it within a period of one year from the date on which it became due. The only application made was that of 27-4-1954; under it he could issue a warrant to levy only the amount which fell due in the period 28-4-1953 to 27-4-1954. He could not issue a warrant to recover any amount which fell due subsequently during the pendency of the application because he had no jurisdiction to issue a warrant for the recovery of any amount without an application for its recovery. An application can be made to recover only the arrears that have fallen due and not for the recovery of any amount that may fall due subsequently, even if before its disposal. The Magistrate illegally issued a warrant for recovery of the amount that fell due in the period from 27-4-1954 to 2-6-1956 i.e. for Rs. 750.00, Rs. 50.00 have been realised subsequently.

(2.) I allow this application, cancel the warrant issued by the Magistrate, and direct that he shall issue another warrant for the recovery of Rs. 280.00 only. Revision allowed.