Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 2419 of 2017 Petitioner :- Jabir Ali Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- A.C.Tiwari(Ac) Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Supplementary-affidavit filed today, is taken on record.
Heard learned counsel for the petitioner and the learned Additional Government Advocate for the respondents 1 and 2.
The present petition has been filed for a direction upon the Principal Judge, Family Court, Allahabad not to proceed further with the recovery proceeding with a further prayer to quash the recovery warrant dated 08.11.2016.
A perusal of the record would go to show that an order of maintenance under Section 125 of the Code of Criminal Procedure was passed against the petitioner. The maintenance amount was not paid by the petitioner and, therefore, the beneficiary of the order applied for its execution. It appears that on 08.11.2016, the Principal Judge, Family Court, Allahabad submitted a request to the District Collector, Pratapgarh for recovering dues as arrears of land revenue.
The present petition has been filed by claiming that the execution of an order of maintenance can be had as per sub-section (3) of section 125 of the Code of Criminal Procedure whereunder the petitioner could be arrested but a recovery certificate cannot be issued, as has been done by the court.
Learned A.G.A. has pointed out that under sub-section (3) of section 125 of the Code of Criminal Procedure, the Magistrate is empowered to issue a direction for levying the amount due in the manner provided for levying fines. For realization of fine, section 421(1)(b) of the Code of Criminal Procedure, 1973 empowers the Court to issue a direction to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the moveable or immovable property or both, of the defaulter. It has thus been submitted that the order passed by the court below seeking to recover the amount as arrears of land revenue by forwarding the recovery certificate to the District Collector is well within the jurisdiction of the Court and therefore the recovery proceedings are not liable to be quashed.
I find substance in the submission of the learned A.G.A.
Once it is not in dispute that amount awarded as maintenance has not been paid, the same can be realised as fine and the procedure prescribed for recovery of fine provided by section 421 (1)(b) of the Code of Criminal Procedure can be taken recourse to by the Court. Accordingly, there is no error in drawing of recovery proceeding as against the petitioner.
At this stage, learned counsel for the petitioner submitted that he may be given sometime to make deposit and, for that short period, recovery proceeding be stayed against him.
Considering that the aforesaid request is reasonable, this Court finds it appropriate to dispose of this petition by directing that for a period of 15 days from today, the recovery proceeding pursuant to the recovery warrant dated 08.11.2016 shall remain stayed provided the petitioner deposits the entire amount due under the recovery certificate dated 08.11.2016 within the said period. If within 15 days from today, the amount due is not deposited, then it shall be open to the authorities concerned to proceed with the recovery proceeding, in accordance with law.
With the aforesaid observation/direction, the petition stands disposed of. Order Date :- 19.4.2017 Sunil Kr Tiwari