K.S. Tiwana, J. - (1.) THROUGH this revision the petitioner has challenged the order of Shri Sarup Chand Gupta, Judicial Magistrate 1st Class, Ludhiana dated 30.8.1972 vide which he, without resorting to the appropriate provisions of section 488 sub -section (3) of Criminal Procedure Code, 1898, sent the warrant against the respondents for the recovery of the maintenance allowance to the Station House Officer, Police Station, Sadar, Ludhiana and also the order passed in revision By the Additional Sessions Judge Ludhiana on 6.3. 1973 affirming the order of the Magistrate.
(2.) THE facts out of which this revision arises are that the Judicial Magistrate 1st Class, Ludhiana, had awarded the amount of maintenance in favour of Shmt Ram Murti and her child against the respondent That revision was pending in the High Court during the pendency of that revision petition in the High Court Smt. Ram Murti applied for the recovery of the amount of the maintenance. This was resisted by the petitioner on two grounds; the first was that the proceedings for the recovery of the amount of the maintenance had been stayed pending proceedings in the High Court and the second was that he was failing to keep Smt. Ram Murti and the child with him. On merits both these prayers were fount against the petitioner and the learned Judicial Magistrate passed the following order : - - The maintenance has been claimed for the intervening period from 20,5,71 on which date it was granted by this Court till 20 3.72 Rs. 50/ - far this period, the maintenance for 10 months conies to Rs. 50.00. It is, therefore, ordered that a warrant of levy for the amount of Rs. 500/ - be issued against the respondent and sent to Station House Officer, Police Station, Civil Lines, Ludhiana, for execution. The Learned Counsel for the petitioner has rightly urged that the Court could not issue such an order in the name of the police in the first instance. He has cited Karnail Singh v. Gurdial Kaur, (1973) 75 P.L.R. 199 in support, wherein it was held : - - That section 438(3) of the Code of Criminal Procedure provide for sentence of imprisonment, on persons' for the whole or part of each month's allowance "remaining unpaid after execution of the amount. These words will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment, a warrant of imprisonment can be ordered. What is contemplated is that in the first instance a warrant of attachment of the property to satisfy the demand of arrears should issue and only if the whole or any pan of it remains unpaid after execution of the warrant imprisonment can be ordered. Therefore, the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for imprisonment. The warrant for arrest directed to be issued without first having recourse to attachment and sale of the property of the respondent is illegal. The sending of the warrants for the levy of the amount of maintenance to the police in this case implies that the order of the Judicial Magistrate against the person of the petitioner was not permitted in law in the first instance. On this score alone the order requires to be quashed. The order under revision is set aside as it transgresses the provisions contained in section 488(3) Criminal Procedure Code, 1898. The parties, through their counsel, are directed to put in appearance before the Court at Ludhiana, which decided the case on 28th July, 1975. ;