- (1.) S. K. Jain, J. In proceedings under Sections 125, Cr. P. C. instituted by Smt. Hameeda Begam against her husband Iftekhar, the learned Magistrate vide his order dated 31-1-78 allowed maintenance to the wife at the rate of Rs. 50/- per month and to the child of the parties at the rate of Rs. 25/- per month with effect from 1st August, 1975. Feeling aggrieved the husband preferred Criminal Appeal No. 21/1978 which was dismissed by the IVth Additional Sessions Judge, Shahjahanpur vide his order dated 8-7-78.
(2.) SMT. Hameeda filed an application for execution under Section 125 (3), Cr. P. C. before the Munsif Magistrate, Shahjahanpur on 9th of December, 1980 claiming that the maintenance allowance had not been paid to her with effect from 1-8-75 nor any amount had been paid to the daughter property of the husband was attached. On the ground that by virtue of provision of Section 125 (3), Cr. P. C. the Magistrate was not competent to attach the property belonging to the applicant in execution proceedings, the husband has brought this revision petition under Section 482, Cr. P. C. I have heard the learned Counsel for the parties and with their help have gone through the record of the case. Learned Counsel for the applicant has vehemently argued that the immovable property of the applicant has been attached for the recovery of Rs. 1,275 as arrear of maintenance allowance for the period with effect from 1-7-79 to 1-12-80 which the Magistrate could not do under the provisions of Section 125 (3), Cr. PC. I have carefully examined the said provisions which are reproduced below for ready refer-ence:- Section 125 (3. 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 if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate] to may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing. I find force in the argument of the learned Counsel. Under this Section a Magistrate has no jurisdiction to attach the immovable property of the applicant and the amount due in cases under Section 125, Cr. PC. can be realised in the same manner as fines and if immovable property is to bb attached, the warrant should be sent to the Collector in accordance with the Section 421, Cr. P. C.
(3.) IN holding the above view I am fortified by tie ratio laid down in Ladh Singh v. Mt. Punjab Kaur, AI. R. 1941 Lahore 360. Learned Counsel for the applicant, in view of the fact that a meagre amount of maintenance of Rs. SO/- per month was granted to the wife land Rs. 25 per month to the children of the parties and further that an amount of Rs. 1275/- for the period with effect unpaid, undertook to get this amount deposited within a period of one month from today. This fair offer of the learned Counsel for the applicant is accepted. This criminal application is disposed of accordingly. Application accordingly disposed of. .;