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Md. Jahangir Khan Vs. Manoara Bibi

Judgements favoring men


Bench: JUSTICE M.K. Mukherjee and A.K. Nandi

Md. Jahangir Khan Vs. Manoara Bibi On 22 March 1991

Law Point:
“Court has jurisdiction to decide matter if there is provision to do so.”





1. This is a reference by a learned single Judge of this Court. A simple question that falls for our determination is as to whether a Judicial Magistrate can issue a process to attach the salary of a defaulting husband who by an order Under Section 125 of the Code of Criminal Procedure, 1973 (‘Code’ for short) has been directed to pay a monthly allowance for the maintenance of his wife. The learned Judge has differed from the view of another learned single Judge expressed in Gora Chand v. Sita Rani reported in 1988 Cal Cri. L.R. 12 to answer the question in the affirmative. In coming to his conclusion, the learned Judge has observed that a maintenance proceeding contained in Chapter IX of the Code is essentially a civil proceeding and therefore the provision contained in Section 60 of the Code of Civil Procedure shall be attracted. In support of the finding that it is a civil proceeding, reliance has been placed upon a Supreme Court decision in Jagir Kaur v. Jaswant Singh, MANU/SC/0242/1963 : [1964]2SCR73 . Federal Court’s observation in the Punjab Province v. Tara Chand reported in MANU/FE/0014/1947 : AIR 1947 FC 23 has been quoted to find that salary before or after it is payable can be attached. It is equated with debt.

2. We are in respectful agreement with the Supreme Court that the maintenance proceeding is in the nature of a civil proceeding. This point is firmly settled not only by the judgment in Jagir Kaur’s case (supra) but also by an earlier decision in Nandlal v. Kanhaiya reported in MANU/SC/0088/1960 : 1960CriLJ1246 . But those judgments, in our opinion cannot be interpreted to mean that all the provisions of the Civil Procedure Code will be applicable. Supreme Court meant to say that the opposite party is neither an accused nor the proceeding is initiated on complaint as envisaged under the Code of Criminal Procedure. This proceeding is taken to a civil proceeding. It does not warrant a departure from the express provision of execution as contained in the Criminal Procedure Code nor can the Court devise a procedure in purported exercise of inherent power. It is, therefore, difficult to interpret the judgment in The Punjab Province v. Tara Chand (supra) warranting a conclusion that the salary is a debt and therefore attachable for maintenance of the wife pursuant to the provision under Section 60 of the Code of Civil Procedure. The express provision contained in the Code has to be followed. Privy Council said in Nazir Ahmed v. Emperor MANU/PR/0020/1936that where power is given to do a certain thing in a certain way the thing must be done in that way or not at all, other methods of performance are necessarily forbidden. This view has been consistently accepted by the Supreme Court also.

3. The provision for execution of an order of maintenance is contained in Section 125(3) of the Code (corresponding to Section 488(3) of the old Code) which, so far as it is relevant for our present purpose, reads as under:–

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may for every breach of order, issue a warrant for levying the amount due in the manner provided for levying fines (emphasis supplied), 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 of until payment if sooner made.
4. Section 421 of the Code, corresponding to Section 386 of the old Code, provides for realisation of fine. The relevant provisions of the two Codes are as follows:–

Section 421: Warrant for levy of fine — (1) When an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may —

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district authorising him to realize the amount as arrears of land revenue (by execution according to civil process against) from the movable or immovable property, or both, of the defaulter.

(2) …

(3) When the Court issue a warrant to the Collector under Clause (b) of Sub-section (1) the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue (emphasis supplied), as if such warrant were a certificate used under such law.

5. Sub-section (3) of Section 386 of the repealed Code reads as follows :–

When the Court issues 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 (emphasis supplied) as to execution of decrees shall apply accordingly.
6. It is thus seen that under the Code, like the repealed Code, two modes of a recovery of arrear maintenance allowance have been envisaged under Clauses (a) and (b) of subsection (1) of Section 421. In this reference, we are concerned only with Clause (a) although we may have to refer to Clause (b) incidentally to follow the scope and application of Clause (a). Section 421(1)(a) contemplates attachment and sale of movable property. So a movable property which is not capable of both attachment and sale cannot suffer an order under Clause (a). In our opinion, the word ‘and’ does not mean ‘or’. This is the legislative intent. In this connection, we may turn to the provisions contained in Section 60 of the Code of Civil Procedure. Section 60(1) reads as “The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes ….” Proviso reads as “provided that the following particulars shall not be liable to such attachment or sale, namely, (i) salary …. It is true that in Clause (1) the words ‘attachment and sale have been used and they refer to money and bank notes also which cannot be subjected to sale. But the provision refers to other objects or articles also which can be sold. But while proviso refers to different articles and also salary the expression “attachment or sale” has been used. Under Section 386(1)(b) of the repealed Code warrant might be sent to the Collector who could execute according to Civil process. Section 386(3) of the said Code contemplated that a competent Civil Court would execute the warrant as a decree and all the provisions of the Code of Civil Procedure would be applicable. So salary was attachable in terms of Section 60 of the Code of Civil Procedure by virtue of Section 386(1)(b) read with subsection (3) of Section 386. That is, exactly the view taken by two single Bench of this Court in Rajendranath v. Brojobala, MANU/WB/0043/1956 : AIR1956Cal135 and Renuka v. Dhirendra, 1974 Cri LJ 171. Their Lordships also held that the Magistrate could not attach the salary under Section 386(1)(a) of the repealed Code. We are in complete agreement with the view.

7. Opinions of different High Courts over this question are divergent. A single Judge of Andhra Pradesh opined that salary could be attached under Section 421(1)(a) of the Code of Criminal Procedure, Ahmed Pasha v. Wajid Unissa, MANU/AP/0009/1982. The learned Judge did not consider as to what was meant by ‘movables’ as used in Section 421(1)(a). It was also not considered that movable referred to therein were liable to be sold under the said provision and that there was no scope of sale of attached salary.

8. Provision in Sections 421(1)(b) and 421(3) of the Code does not materially differ with its counterpart in the repealed Code. The only change is that under Clause (b) the amount is recoverable as arrears of land revenue, in West Bengal, it is recovered by means of a certificate proceeding according to the provisions of Bengal Public Demands Recovery Act, 1913. Mode of execution has been provided in Section 14 of the said Act. Section 17 has made Section 50 of the Code of Civil Procedure applicable. Thus two distinct provisions are found in Clauses (a) and (b). It cannot be argued that under both the provisions salary is attachable. In that event one of the two provisions becomes redundant. It is an accepted principle of interpretation of statute that the theory of redundancy has to be ruled out.

9. The problem may be viewed from another angle. If we interpret Clause (a) to mean that it authorizes the Magistrate to attach salary, since maintenance proceeding is in the nature of a civil proceeding, we cannot refuse application of the same in the matter of realization of fine under various provisions of the Code. That cannot be done otherwise than by violence to the language of the statute. A statute cannot be interpreted in one way with reference to certain provision and in a different way with reference to other provision.

10. Section 421(1)(a) speaks of movable property. Movable property has not been defined in the Code of Criminal Procedure. We have to borrow the meaning from Indian Penal Code in view of Section 2(y) of the Code of Criminal Procedure. Section 22 of the Indian Penal Code defines ‘moveable property’.

11. “The words ‘moveable property’ are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”

It is true that the principle of interpretation of statute contemplates that inclusive definition is not exhaustive. But on the account, it is not supposed to include incorporeal or intangible property in contrast to corporeal or tangible property.

12. The question as to whether Section 386(1)(a) of the old Code (Section 421(1)(a) of the Code) contemplated salary as a moveable property within the meaning of the provision came up for consideration before other Courts. Wanchoo, C.J. (as His Lordship then was) speaking for the Division Bench in Baldevi v. Ramnath MANU/RH/0101/1954 found that future salary was not tangible corporeal property and that it did not belong to the husband because he could not be said to have earned his future salary. Accordingly it was held that salary was not attachable under Section 386(1)(a) of old Code. The same view was taken in State v. Doraiswamy MANU/KA/0143/1964 by the Mysore High Court. We are in respectful agreement with this view.

13. A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah v. Muddagangamma m 1985 Cri LJ 707 sought to make a synthesis in Surekha v. Ramahari MANU/OR/0128/1989. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, we cannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge. In our opinion, the view consistently taken by this Court and also adopted by the learned single Judge in Goara Chand’s case (supra) is the correct view. We hasten to add that we are not unmindful to the hardship that may be caused to a destitute lady by reason of the view we have taken. We therefore feel that it is high time that an effective, simple and speedy procedure should be laid down in Chapter IX by the legislature for execution of an order of maintenance.

14. Before parting with this judgment, we place on record our deep appreciation for the valuable assistance rendered by Mr. Balai Chandra Roy, the learned Advocate, who appeared as amicus curiae.


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