Magistrate Can Issue Warrant For Recovery Of Defaulted Maintenance U/S 125 CrPC As Arrears Of Land Revenue: Allahabad HC

In a very significant observation, the Allahabad High Court has in a most learned, laudable, landmark, logical and latest judgment titled Rama Nand vs Hira Lal in Second Appeal No. 1698 of 1900 and cited in 2022 LiveLaw (AB) 477 that was pronounced on September 30, 2022 held that the Magistrate has the power to enforce an order of maintenance passed under Section 125 Cr.P.C. by issuing a warrant to the Collector to recover the same as arrears of land revenue. It must be mentioned here that the Single Judge Bench of Hon'ble Mr Justice JJ Munir clarified that if read conjointly, Section 125(3) and Section 421 give power to the Magistrate to issue a warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue. Very rightly so!

At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench of Hon'ble Mr Justice JJ Munir sets the ball rolling by first and foremost putting forth in para 1 that, "This is a plaintiff's appeal, arising out of a suit for declaration and permanent prohibitory injunction."

As things stand, the Bench mentions in para 2 that, "The facts giving rise to this appeal are these:

The plaintiff-appellant, Rama Nand, who shall hereinafter be referred to as the 'plaintiff', instituted O.S. No. 390 of 1985 in the Ex-Court of Munsif Havali, Varanasi, seeking a declaration to the effect that the proceedings of revenue sale dated 04.12.1982 and the sale letter based on it relating to land, detailed at the foot of the plaint, be declared void and a decree of permanent injunction granted, restraining the defendant-respondent, Hira Lal (for short, 'the defendant') from interfering with the plaintiff's possession over the suit property or changing its nature and character."

While dwelling on the narrative of plaintiff, the Bench then states in para 3 that, "The plaintiff's case is that Smt. Usha Devi brought proceedings against him under Section 125 Cr.P.C. in the Court of the Metropolitan Magistrate, Kanpur Nagar seeking award of maintenance. In the maintenance case aforesaid, the Magistrate passed an ex parte order, granting maintenance to Smt. Usha Devi on 13.01.1982. The ex parte maintenance order dated 13.01.1982 was passed against the plaintiff. The plaintiff, upon coming to know of the ex parte order, made an application to the Metropolitan Magistrate, Kanpur Nagar, seeking to set aside the sale. The Magistrate on 17.05.1982 allowed the plaintiff's application and set aside the ex parte maintenance order dated 13.01.1982. In the meantime, on the basis of the ex parte maintenance order dated 13.01.1982, the defendant, in connivance with the Tehsildar and Naib Tehsildar, Varanasi, brought the plaintiff's immovable property, detailed at the foot of the plaint (for short, 'the suit property') to sale on 04.12.1982 . The plaintiff's wife applied for the recovery of dues under the ex parte maintenance order. The plaintiff did not know anything about the revenue sale held, creating rights in favour of the defendant."

Further, the Bench then discloses in para 4 that, "It is the plaintiff's case that after the maintenance order dated 13.01.1982 had been set aside on 17.05.1982, sale of the plaintiff's property on 04.12.1982 was one made without jurisdiction, as there was no maintenance order in existence then to execute. It was also pleaded that the proceedings of the revenue sale are vitiated, because there was no proclamation by beat of drum, nor proceedings taken in accordance with law. The sale is fraudulent and illegal. The further case is that the defendant, on the basis of the revenue sale concluded in his favour, is moving to forcefully dispossess the plaintiff."

On the other hand, the Bench then reveals in para 5 that, "The defendant put in a written statement, pleading that he had purchased the suit property in the revenue sale held, wherein there was no illegality or irregularity. The defendant on 04.12.1982, upon payment of sale consideration, that was fetched in the auction proceedings, purchased the suit property bona fide. He had paid a total consideration of Rs.10,000/-. The proceedings of the auction sale have been confirmed and the sale certificate issued in favour of the defendant. The legality or irregularity in conducting the sale cannot be questioned before the Civil Court. The defendant never connived with Smt. Usha Devi nor did he procure a judgment, based on any kind of conspiracy with Smt. Usha Devi, or got the revenue sale held in furtherance of any conspiracy, as alleged by the plaintiff. The Tehsildar and the Naib Tehsildar did not take proceedings of the revenue sale in a manner that is bogus or fraudulent. The defendant, Hira Lal never had knowledge of the fact about the maintenance order passed ex parte under Section 125 Cr.P.C. against the plaintiff being set aside. The further case is that even if the order of maintenance ex parte was set aside, the revenue sale held on 04.12.1982, cannot be set aside, because the defendant is a bona fide purchaser for value without notice and further the auction sale has been confirmed."

Most significantly, the Bench then minces just no words to hold in para 23 that, "A conjoint reading of the provisions of Sections 125(3) and 421(1) of the Code shows that it is open to the Magistrate to enforce an order of maintenance that remains uncomplied with, for every breach of it, by the issue of a warrant for levying the amount due in the manner provided for levying fines. Section 421(1) gives two options to the Magistrate: firstly, under Clause (a) of sub-Section (1) of Section 421, he may issue a warrant for levying of the amount by attachment and sale of any movable property belonging to the offender. In the context of maintenance proceedings, the provision would bear reference to the person in default of the maintenance order in place of the offender. Secondly, the Magistrate may issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, belonging to the defaulter. Sub-Section (3) of Section 421 obliges the Collector, whenever a warrant is issued to him, to recover any amount, that qualifies for a fine, as arrears of land revenue in accordance with law, treating the warrant to be a recovery certificate issued under the law relating to land revenue recovery."

Equally significant is what is then mandated in para 24 wherein it is postulated that, "It is the discretion of the Magistrate, before whom an application for enforcement of the maintenance order comes up, either to issue a warrant for the levy of the amount by attachment and sale of movables of the defaulter under Section 421(1)(a) of the Code, or to issue a warrant to the Collector, authorizing him to realize the amount as arrears of land revenue. It is open to issue both kind of warrants simultaneously also. Acknowledgment of the Magistrate's power to simultaneously issue both kind of warrants or either of them, under Section 421(1)(a) or 421(1)(b) is there, albeit in a different context in Om Parkash v. Vidhya Devi, 1991 SCC OnLine P&H 387. In Om Parkash (supra) , it has been held :

(4) ….........

The perusal of the above-quoted section 421 reveals that there are two methods for levying fine and the Court has been empowered to opt for either of these two modes or both at one and the same time. One of these modes provided under subsection (1)(a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both. In the case in hand, the trial Court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial Court that the husband is a man of means. Thus, legally the impugned order of the trial Court being not sustainable calls for quashment."

It would be worthwhile to mention that the Bench then notes in para 25 that, "Again, the principle that the Magistrate, before whom a maintenance order comes for enforcement, can simultaneously issue both kind of warrants under Sections 421(1)(a) and 421(1)(b) of the Code, was wholesomely endorsed by the Kerala High Court in Ramakrishnan T.K. v. C.N. Subhadra & another, 2009 SCC OnLine Ker 6397, where it was held:

15. The express language of Secs. 421(1)(a) and ( b) Cr. P.C. is that either or both of the following ways (ie., issue a warrant for attachment of movable and issue of a warrant to the Collector to attach the movable and immovable properties) can be resorted to by the court. I find the said submission to be very impressive. This court in Nithiyanandan and Kuttappan had no occasion to consider that question. The express language employee by the Code makes it very clear that when it comes to levy of fines the court is no obliged to resort to both the methods under Secs. 421(1)(a) and (b) Cr. P.C. Either of the two or both can be pursued by the court in its discretion."

Most remarkably, the Bench then observes in para 26 that, "Here, the plaintiff questions the jurisdiction of the Magistrate to issue a warrant to the Collector for the recovery of the amount of maintenance in default as arrears of land revenue, because he says that the Magistrate had no such power. The said proposition is only stated to be rejected. The provisions of Section 125(3) and Section 421 read conjointly are a complete answer to the plaintiff's denial of jurisdiction with the Magistrate to issue a warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue."

Most forthrightly, the Bench then mandates in para 27 that, "The substantial question of law framed is, accordingly, answered in the affirmative and it is held that the Magistrate has power to enforce an order of maintenance passed under Section 125 Cr.P.C. by issuing a warrant to the Collector to recover the same as arrears of land revenue."

For sake of clarity, the Bench then clarifies in para 28 that, "No other point was pressed."

In addition, the Bench then directs in para 29 that, "The appeal fails and is dismissed with costs."

Finally, the Bench then concludes by holding in para 30 that, "Let a decree be drawn up, accordingly."

No doubt, the long and short of this notable judgment by the Allahabad High Court is that it has been made manifestly clear that Magistrate has the power to issue warrant for recovery of defaulted maintenance under Section 125 CrPC as arrears of land revenue. This must be always adhered to as directed. No denying it!