SAMBHU LAL RAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal arises in connection with an application for execution made by the Collector of 24 Parganas for realising some maintenance money through the Civil Court. Apparently the application for execution was filed by the Collector under the provisions of Sub-section (3) of Section 386 of the Criminal Procedure Code. The only objection taken by the appellant in the executing court was that the Civil Court has no jurisdiction to entertain an application of this kind and the order passed by a Magistrate under Section 488 of the Code of Criminal Procedure is not executable through the Civil Court. The application for execution was made by the Collector under Sub-section (3) of Section 386 of the Criminal Procedure Code because the Magistrate who had passed the order for maintenance had issued a warrant to the Collector authorising him to realise the amount due from the appellant. There can be no question that such a warrant shall be deemed to be a decree and the nearest Civil Court by which such a decree can be executed is the proper court through which execution can be levied. Having taken this view, the executing court disallowed the objection of the appellant. He preferred an appeal which was also dismissed. In the lower appellate court a further ground was taken on behalf of the appellant that he had already been sentenced to imprisonment by the Magistrate for a month, and having done so it was not within the competence of the Magistrate to issue a warrant to the Collector for realising the amount. This contention was negatived by the lower appellate court. So the judgment-debtor of the executing court against whom the order for maintenance was passed has come up in Second Appeal.

(2.) After hearing Mr. Bhose on behalf of the appellant and Mr. Chakravarti on behalf of the State I am of opinion that there is no substance in this appeal. Mr. Bhose was not in a position to urge the objections which were really urged in the courts below. In this Court Mr. Bhose wanted to press a new point. The amount of maintenance payable by the appellant is admittedly Rs. 50/-per month. Execution was levied by the Collector for a sum of Rs. 1150/-. Mr. Bhose contended that under the second proviso to Sub-section (3) of Section 488 of the Criminal Procedure Code no warrant can be issued for the recovery of any amount unless application be made to the court to levy such amount within a period of one year from the date on which the amount became due. Mr. Bhose contended that the period of limitation provided by the above proviso is one year. Mr. Bhose argued that the Collector could levy execution for an amount of Rs. 600/- only which was the amount of maintenance payable for one year and not for any amount in excess of that. In my opinion this contention cannot be allowed to be raised in the executing court. It would be open to the appellant to move the learned Magistrate who sent the warrant to the Collector for revising the warrant, if the appellant is so advised and if it is permissible for him to make such an application. The objection cannot be allowed to be raised in the executing court. So the objection raised on this ground must fail.

(3.) Mr. Bhose submitted before me that his client has already deposited a sum of Rs. 900/- in two instalments without prejudice to his rights and contentions. This fact will be duly considered by the executing court. For reasons stated above, I dismiss this appeal with costs to the respondent.