The Allahabad High Court in the case Rama Nand v. Hira Lal observed and has 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 for recovering the same as arrears of land revenue.
The bench comprising of Justice J. J. Munir observed and has clarified that reading conjointly, the power given to Magistrate under Section 421 to issue warrant to the Collector for recovering the defaulted maintenance as arrears of land revenue.
Background of the Case
An ex-parte order was obtained by one Usha Devi against the plaintiff (herein appellant) for getting of a maintenance under Section 125 Cr.P.C. in January 1982, in the Court of the Metropolitan Magistrate, Kanpur Nagar. However, the plaintiff came to know about the ex parte order and thus, an application was made by plaintiff to the Metropolitan Magistrate, Kanpur Nagar seeking to set aside the sale. In May 1982, the same was allowed and the ex parte maintenance order was set aside.
In December 1982, the defendant purchased the plaintiff’s immovable property. Thereafter, the wife of the plaintiff applied for the recovery of dues under the ex parte maintenance order.
In the present case, it was contended by plaintiff that after the maintenance order had been set aside in May 1982 and the property of the plaintiff’s was sold in December 1982, the one which was made without jurisdiction, as there was being no maintenance order in existence then to execute.
The District Judge of Varanasi dismissed his suit, aggrieved with the same, he moved to the High Court arguing that it was not open to the Magistrate, who had the execution of the ex parte maintenance order before him, for enforcing it by forwarding a recovery certificate to the Collector.
It was argued by the defendant who brought the property in question that there was jurisdiction under the law available to the Magistrate for issuing a recovery certificate to the Collector by virtue of the provisions of Section 125(3) of the Code of Criminal Procedure.
Accordingly, the court rejected the arguments of the plaintiff that the Magistrate had no power for issuing a warrant to the Collector for the recovery of the amount of maintenance in default as arrears of land revenue. The court dismissed the appeal with costs.
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