R.A.Misra - (1.) THIS revision arises out of the order dated 28-1-1980 passed by Sri C. P. Singh, Second Additional Sessions Judge, Honda, allowing revision of Amanullah Supurdar and setting aside the order dated 19-5-1979, passed by Sri A. R.Sharma. 5th Additional Munsif Magistrate, Gonda, rejecting Amanullah's application dated 8-5-79 for withdrawl of the order of attachment of his property.
(2.) THE facts briefly stated are these :- Ateeq Mohammad and Kumari Shafiun Nisa, the minor son and daughter of Saeek Mohammad, opposite party no. 2, were granted maintenance under section 125 of the Code of Criminal Procedure. Saeek Mohammad, the father, failed to comply with the directions of the court without sufficient cause. THE learned Magistrate, therefore, issued a warrant for levying the amount due in the manner provided for levying fine as provided under section 125 sub-clause (3) CrPC and some moveable property of Saeek Mohammad was attached and given in the custody of Amanullah. It so appears that subsequently Amanullah tailed to produce the attached moveable property for sale when called upon to do so. THE learned Magistrate, thereupon, directed that the amount be realised by the attachment of the property belonging to the Supurdar Amanullah. An application moved by Amanullah for setting aside the aforesaid order of attachment and sale of his property was rejected by the learned Magistrate but in revision the learned Sessions Judge set aside the order passed by the learned Magistrate for attachment and sale of Amanullah's property THE minors, to wit, Ateeq Mohammad and Km. Shafiun Nisa, who are entitled for the maintenance, have preferred this revision against the aforesaid order of the Sessions Judge. I have heard the learned counsel for both the parties. The fact that a direction was issued by the learned Magistrate in exercise of his powers under section 125 of the CrPC for payment of maintenance to the minors by their father Saeek Mohammad and also the fact that Saeek Mohammad failed to comply with the order and directions of the court whereupon his moveable property was attached go unchallenged and are established from the material on the record. Amanullah contested the proceedings before the court below on the ground that the moveable property was not actually given in his custody but both the courts below have repelled his contention on the ground that Supurdaginama bears his signature. The learned Sessions Judge has allowed the revision and set aside the order of the Magistrate on the ground that the Supurdaginama does not make the Supurdar liable tor protection of the attached property and in terms of the Supurdaginama it is not possible to recover any amount by attachment of the property belonging to Amanullah.
(3.) THE learned counsel for the revisionists has not been able to refer to any provision under the Code of the Criminal Procedure or any other law whereby the amount may be realised by attachment and sale of the property belonging to Amanullah under the circumstances narrated above. Section 125 sub-clause (3) provides that, if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment is sooner made. So the amount of maintenance may be realised as a fine. Section 421 of the CrPC authorises a Magistrate to issue a warrant for the levy of the amount by attachment and sale of any moveable property, belonging to the offender for the recovery of the fine. In the instant case a warrant appears to have been issued under section 421 (1) (a) of the Code and in execution thereof the moveable property of Saeek Mohammad appears to have been attached. Sub-section (2) of Section 421 of the Code provides that the State Government may make rules for the summary determination of any claim that may be made in respect of the property attached under sub-section (1) (a) and it is the duty of the Court in such cases to hold a proper enquiry into the title of the claimant. The learned Magistrate, it so appears, has not followed any summary procedure which may have been laid down by the State Government in exercise of its powers under sub-section (2) of Section 421 of the Code. The learned counsel for both the parties have not been able to lay their hands on any such rules framed by the State Government under section 421 sub-section (2) of the Code and as observed above the court below also does not appear to have followed any such procedure. In case the State Government has made rules regulating the manner in which warrants under clause (a) of sub-section (1) of Section 421 of the Code to be executed then the court below shall proceed with the matter according to such rules, but in case no such rules have been framed so far then in my opinion the procedure prescribed for the enquiry into claims etc., under section 83 of the CrPC should be adopted. In the instant case the learned counsel for the revisionists have not been able to refer to any provision under which the property of the Supurdar may be attached and put to sale in cases where the Supurdar fails to produce the property when called upon to do so.;