1. Pumamasi Saraf and Abhimanyu Saraf, aged 11 and 9 years respectively, got an order of maintenance on 15-10-63 under Section 488 of the Cr PC against Jagannath Patra. A revision against that order was dismissed by this Court in 1964. The minors filed an application under Section 488(3) of the Cr PC for recovery of the arrears for the period from 5-10-63 to 5-4-65.
2. The learned Magistrate issued a warrant for attachment of movable and immovable properties and of the body of Jagannath. Against this order Jagannath filed a revision before the learned Sessions Judge at Bolangir who has made two recommendations thus—
(i) That the issue of warrant of arrest before the warrant of attachment and sale of the properties failed to satisfy the arrears was illegal; and
(ii) An amount for more than one year was not recoverable.
3. Section 488(3) lays down 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 manner here in before 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.
4. It would thus be apparent that in the first instance warrant of attachment of the movable and immovable properties would be issued, the properties would be sold and applied for discharge of the arrear dues, and if on such steps being taken the arrear amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then. The order of the learned Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law.
5. The second proviso to sub-section (3) of Section 488 of the Cr PC enacts 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. Thus the period of limitation is one year Any arrear falling beyond one year is barrel by limitation.
6. On the aforesaid analysis, the ??? must go back to the learned Magistrate. He would in the first instance issue warrant of attachment of the properties for recovery of arrears of maintenance for a period of one year preceding the date of application. If the properties attached and sold do not satisfy the arrears due, it is open to the learned Magistrate to issue a body warrant.
7. The reference is accepted. The order of the learned Magistrate dated 14-10-65 is set aside and he is directed to dispose of the case in accordance with law and the observations made above. The case has been long delayed. The Magistrate is directed to dispose it of as early as possible.
MKS/D.V.C
8. Reference accepted.