KUNDAN LAL Vs. MST. BHANO

JUDGEMENT

(1.) ON hearing Shrimati Bhano and the learned Assistant Advocate General, I agree with the learned Sessions Judge that the order of attachment and sale of the property of Kundan Lal in execution of the order of maintenance, passed in favour of Shrimati Bhano under section 488, Criminal Procedure Code, cannot be sustained. Sub -section (3) of section 488 Criminal Procedure Code, lays down that an order of maintenance is to be enforced in the manner provided in the Code of Criminal Procedure for levying fines. The provision of levying fine is contained in section 386, Criminal Procedure Code, which lays down that if the fine is to be realised by attachment of movable property the Court passing the sentence, may itself issue a warrant for attachment of movable property belonging to the offender. Under clause (b) of, sub -section (1) of section 386, Criminal Procedure Code, which is relevant for our purposes, the Court levying the fine is required to issue a warrant to the Collector of the district authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. It is thus evident that where the amount of maintenance or fine is to be realised by attachment of immovable property the Court passing the order of maintenance or, imposing the fine has to send a warrant for realisation of the amount to the Collector of the district. Even the Collector on receipt of such warrant cannot proceed to execute it by attachment or sale of the property but he is required to realise the amount "by execution according to civil process."

(2.) SUB -section (3) of section 386, Criminal Procedure Code then lays down: "Where the Courts issue a warrant to the Collector under sub -section (1) clause (b) such warrant shall be deemed to be a decree, and the Collector to be the decree -holder, within the meaning of the Code of, Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly." This clearly means that for realisation, according to the civil process the Collector has to adopt the same procedure as a decree -holder would in execution of a civil decree. The procedure for execution of such decrees is contained in Order 21, Civil Procedure Code. It is thus obvious that the Collector has to make an application for execution to the Civil Court. In the case before us this procedure has not been followed and from the perusal of the orders of attachment passed in the present case it appears that the attachment was effected by a Magistrate and not by a Collector. Accordingly, the order of attachment of Kundan Lal's property and the subsequent order of its sale passed by the Magistrate, 1st Class, Dhuri on the 8th August, 1961 are set aside and the petition is accepted.