1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the High Court dated 26-10-1992, whereby the order passed by the Magistrate 1st Class, Mirpur, dated 21-6-1992 was set aside in exercise of revisional jurisdiction.
2. ' The brief facts giving rise to the present appeal are that the appellants, herein, were awarded maintenance allowance to the tune of Rs,900 per month under section 488, Cr.P.C., vide the order of the Magistrate dated 30-11-1987. On 4-12-1991, the applicants-appellants moved an application for execution of the order of the payment of maintenance allowance before the Extra Assistant Commissioner, Magistrate 1st Class, Mirpur, alleging that the respondent had failed to pay the maintenance allowance. They prayed that the amount falling due to them from 30-11-1987, the date of the application under section 488, Cr.P.C., till the date when the application for execution was filed, might be recovered from the respondent through execution proceedings. Consequently, a notice was issued to the respondent who appeared before the Magistrate and he was sentenced to one month's imprisonment on 18-5-1992. On 21-6-1992 an objection was raised before the Magistrate by the counsel for the respondent to the effect that as no show-cause notice was served upon the respondent, he should be afforded an opportunity to show as to why he had failed to pay the maintenance allowance. Consequently, the respondent was produced before the Magistrate by the Jail Superintendent in compliance of the order of the Court. The respondent took the plea before the Magistrate that he was a poor man and as such he was not in a position to make full payment of arrears of the maintenance allowance which come to the tune of Rs,57,600.
3. However, the respondent agreed that he would pay the amount by instalments. A sum of Rs,2,000 was paid by the respondent to the appellants in the Court. He undertook that out of the rest of the arrears he would pay Rs,2,000 on 20th of each month and in addition to that he also agreed to pay Rs,900 per month on the aforesaid date of each month. Consequently, the respondent was released from the custody. The aforesaid undertakings of respondent were incorporated in the order of the Magistrate dated 21-6-1992 which was subsequently challenged by the respondent before the High Court and the impugned order was passed.
4. ' The High Court has observed that the present application for execution was moved on 4-12-1991.
5. According to the impugned order, the respondent, on a previous application, was committed to prison for fifteen days from where he was released on 24-7-1991. That application for execution was for the payment of whole of the arrears of allowance which amounted to Rs,57,600, thus, the respondent could not be imprisoned for the non-payment of the aforesaid amount for the second time. Consequently, the impugned order whereby the respondent undertook to pay Rs,2,000 towards the arrears of the maintenance allowance and Rs,900 per month as maintenance allowance for future was violative of law. The High Court expressed the view that the respondent had once suffered the imprisonment for non-payment of allowance for fifteen days, no further action could be taken on the application moved by the appellants on 4-12-1991. It was observed that the appellants are at liberty to initiate the proceedings for the recovery of the allowance for the period falling subsequent to 4-12-1991. In other words, according to the view taken by the High Court, the appellants were not entitled to the recovery of the arrears for the period prior to application dated 4-12-1991 because the respondent had once undergone the imprisonment for fifteen days for non-payment of the maintenance allowance.
6. ' It may be stated that before dealing with the points involved in the case, it would be expedient to reproduce subsection (3) of section 488, Cr.P.C., and proviso second to the said section and the provisions contained in section 386 of the Cr.P.C. Which are as under:-- "488.---(1) ------------------------------------------
(2) ..................................................................................................................................
(3) 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 hereinbefore 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: ' Provided, further, 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.
7. (4)
8. (5)
(6) ..................................................................................................................................
9. "386.---(1) Whenever 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 realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: ' Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reason to be recorded in writing it considers it necessary to do so.
(2) The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the Collector under subsection (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 as to execution of decrees shall apply accordingly: ' Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
10. It is evident that for every breach of order passed under section 488, Cr.P.C., the person against whom the order of the maintenance has been passed can be imprisoned for a term which may extend to one month or until the amount is sooner paid. It may be emphasised that maximum imprisonment of one month is stipulated for every breach of the order which implies that after execution of the warrant for recovery of the maintenance, the person against whom an order is passed can be sentenced for one month for any or whole of the part which remained unpaid. It may be stated that if a person has been sent to prison for a period of one month or less for breach of a particular amount, he cannot be again sent to the prison for that amount for nonpayment of which he was previously sent to the prison but he can be sent to prison for any number of times if the payment pertains to not the period for which he was previously sent to prison but a period different from that, whether it falls earlier or subsequent to the period for which he was sent to the prison. It is also not necessary that there must be separate warrants for committing the culprit to the prison for each breach. The only condition is that the breach of order must not be pertaining to the period for which he had been sent to prison earlier. It is also not stipulated under law that if previous application for execution remained unsatisfied for one reason or other, execution proceedings can be initiated on a subsequent application pertaining to the period which was also covered by the earlier application. It may be noted that the mode of execution of the application of an order of maintenance allowance under section 488, Cr.P.C., is same as is laid down for the recovery of fine envisaged under section 386, Cr.P.C. i,e. The recovery may be made by attachment and sale of any movable property belonging to the offender or by sending the warrant to the Collector of the District authorising him to realise the amount by attaching and selling the movable or immovable property, or both, of the defaulter. The combined reading of the provisions contained in section 488, Cr.P.C. And section 386, Cr.P.C., shows that even if a warrant for execution is satisfied partially and some amount of the maintenance allowance remains unpaid, the defaulter against whom the order is passed can be sentenced to a maximum period of one month provided he has not been sentenced previously for the relevant period. It would be expedient to review the case-law on the subject relating to the points enunciated above: ' In case reported as Maung Tun Zan v. Ma Myaing AIR 1941 Rang. 247, it was observed that a defaulter may be sentenced for one month's imprisonment in respect of the arrears of each month or a further broken period but he cannot be sentenced second time for default in respect of the same arrears.
11. ' In Karson Ramji Chawda v. The State of Bombay AIR 1958 Bom. 99, the husband against whom the order of maintenance was passed made a default in payment. The wife made an application that there had been a default in payment of the allowance for four months. The Magistrate issued warrant but the same could not be executed as the non-applicant had no property. The wife made another application under section 488(3), Cr.P.C. On which the Magistrate passed an order sentencing the non-applicant to imprisonment for a period of fifteen days in respect of each month for which maintenance allowance remained unpaid. It was held that the order of the Magistrate suffered from no legal infirmity and the contention that the Magistrate could not pass the order of imprisonment for more than one month was repelled.
12. ' In case reported as Jasodabai v. Tarachand Tekchand AIR 1939 Sindh 180, it was observed that mere absence of application for maintenance within four years of order of maintenance does not deprive the wife of her right to the maintenance under order for maintenance. It was observed that an order whose term is not fixed and whose currency is not made expressly dependent upon the continued existence of some circumstance or set of circumstances, remains in force until it is cancelled. It was observed that mere fact that wife made an application for execution after more than 12 months would not deprive her from enforcing the order because the application was made beyond the period of one year.
13. ' In Jagat Bandhu Sahu v. Lakshmi Dei AIR 1958 Orissa 257, the facts were that the wife applied for realisation of the arrears of maintenance due. The claim included certain amount which was for a period of more than one year old counted from the date when it fell due. However, in the application, it was clearly stated by the wife that the same was also claimed by her in a previous application brought within the period of one year but the amount could not be realised from the husband. It was held that the execution of the allowance beyond the period of one year cannot be denied because limitation provided under the proviso to subsection (3) should not be so construed as to give loop-hole for a negligent husband to avoid payment in the first instance and, then, by evading appearance before the COurt and afterwards pleading the limitation.
14. ' In case reported as U. Hpay Latt v. Ma Po Byu AIR 1935 Rang. 407, the wife made an application for the execution of the maintenance within four months when it fell due but the same was dismissed as husband was not traceable. The second application for the execution was made after 12 months from the date when the same became due. It was held that the contention that the application for the recovery of the amount beyond the period of one year was not maintainable is not tenable; the order for the execution for the period cf fifteen months was held valid.
15. ' In case reported as Emperor v. Beni AIR 1938 All. 386; it was observed that the Court can issue one warrant and impose cumulative sentence of imprisonment for each of the defaults; that the separate warrant in resepct of each of the terms of imprisonment was not necessary. It was further observed that intention of the Legislature was to empower the Magistrate after the execution of one warrant only to sentence a person and if the arrear accumulated, the Court can issue one warrant and award cumulative sentence of prison to a defaulter.
16. ' In Kantappa v. Sharanamma AIR 1967 Maysore 81, it was observed that in case of default of the payment of maintenance allowance, the maximum period of imprisonment can be one month for each month's arrear. The period of sentence should be computed with reference to each month's default and the cumulative sentence should be passed.
17. ' It is evident from what has been stated above that the impugned order passed by the High Court that no further action can be taken on the application of the appellants moved on 4-12-1991 which pertained to the payment of arrears prior to 4-12-1991 is not tenable. The relevant extract from the impugned judgment of the High Court is reproduced as under:-- ".... The Magistrate had no jurisdictional competence to issue warrant for recovery of the amount payable commencing from 29-1-1987 when the application was moved upto 18-5-1992 when the order was passed. Under the provision contained in section 488, Cr.P.C. The respondents could either move application for execution relating to each month or through a single application for recovery of the arrear but only for a period within 12 months from the date of application. A single warrant in respect of the whole arrear due at the time of issuance of such a warrant is permissible under this section and not a separate warrant for the arrear due for each month ... It is important to note that in the first instance he had undergone the whole period of imprisonment for which he had been sentenced on 18-5-1992 and secondly on 21-6-1992 when he was released by the Magistrate on payment of Rs,2,000. The application for execution moved on 4-12-1991 by the respondents stood fully satisfied that the petitioner, as already stated, had undergone the full period of sentence awarded to him by the Magistrate and he cannot be vexed twice and sentenced with the imprisonment for default of payment of a sum for which he has already undergone the imprisonment. No further action on this application of the respondents moved on 4-12-1991 remains to be taken. The minor-respondents shall however be at liberty to initiate proceedings permissible under law for the period subsequent to 4-12-1991. The revision petition stands disposed of in the terms indicated above."
18. ' It follows from the above extract of the impugned judgment that in view of the High Court the arrears of the maintenance which are due to the appellants from 29-1-1987 to 3-12-1991 cannot be claimed by the appellants because their application has been 'satisfied'. This conclusion is based on an assumption that the appellants moved for recovery of the arrears of maintenance allowance for the first time on 4th of December 1991. However, the record shows that this assumption is not correct. It is mentioned in the application moved on 4th of December, 1991 that respondent, Muhammad Ayyub, had once been sent to jail for fifteen days. On page 115 of the trial Court record there is an application which was moved on behalf of the present appellants on 12th of January, 1988 in which it was submitted that their application under section 488 of the Cr.P.C.
19. Had been decided on 30th of November, 1987 and necessary steps may be taken that Muhammad Ayyub should pay arrears from 29th of January, 1987 (the date fixed by the Court) till the making of the application and subsequently at the rate of Rs,900 per month. A new file was opened on this application and proceedings in the nature of execution of order commenced. It is in these proceedings that the Magistrate sent Muhammad Ayyub to jail for fifteen days on 8th July, 1991.
20. This application was not brought to the notice of the learned Judge of the High Court and the learned Judge wrongly assumed that for the first time the application for implementation was made on 4th December, 1991 while in fact the first application had been moved on 12th of January, 1988. Since this application was moved within one year of the pronouncement of the order on 30th of November, 1987, the fact that arrears claimed in the application had not been realised from respondent would not lead to the result that the claim had become barred. In this context we may refer to the cases Jagat Bandhu Sahu and U. Hpay Latt which have been mentioned above and the case of Muhammad Afzal v. Munawar Jan PLD 1961 Lah.
21. 199.
22. ' As has been stated above, the modes of execution of an order of maintenance allowance have been stipulated under section 386, Cr.P.C. i,e. By attaching the movable or immovable property of the respondent and selling the same; the said modes are still available to the appellants. Even the appellants have not prayed in the aforesaid application that the respondent may be sent to prison.
23. In view of the authorities discussed above, it is evident that although the trial Court could have sent the respondent to prison for each of the defaults in payment of maintenance allowance for a period of one month and cumulative sentence could have been also awarded but the trial Court chose only to sentence him for fifteen days imprisonment on an earlier application. Thus, it cannot be said that the respondent can be again sent to prison for non-payment of arrears pertaining to the period prior to 4-12-1991 merely because the Magistrate had chosen earlier only to sentence him for fifteen days imprisonment. However, the respondent can be sent to prison for each of the defaults in paying the maintenance for the period subsequent to 4-12-1991. Thus, the view taken by the High Court that the arrears for the period from 29-1-1987 to 4-12-1991 cannot be claimed by the appellants is not tenable the observations that the application for payment of the same has been `satisfied' are not correct.
24. ' In the light of what has been stated above, the order of the High Court is partly set aside with the observations that the Magistrate shall proceed with the execution proceedings in the light of the discussions made above. However, the respondent shall not be sent to prison for non-payment of maintenance allowance for the period prior to 4-12-1991 but all the same he can be sentenced for making default in payment for any period falling after 4-12-1991.