IMPORTANT POINT
The salary payable to an employee is amenable for a levy warrant issued under section 421 (1)(a), Cr. P.C.

JUDGMENT

N.D. Venkatesb, J. - The respondent is the wife of the petitioner. She obtained an order in C.M.C. No 4/82 on the file of the J.M.F.e. Gouribidanur under section 125 of the Cr. P.C. for monthly maintenance at the rate of Rs. 200.

2. Since the husband is said to have committed default in paying the monthly maintenance she has applied to the court under section 125 (3) of the Code for recovery of the amounts due. By the impugned order the learned Magistrate, over-ruling the objections of the husband, has directed attachment of the salary payable to the husband by the State Government. It. may be noted that he is an employee under the State Government and is working as a Forest Guard in the Department of Forests.

3. Sub-section (3) of section 125 of the Code provides that "if the person concerned fails without sufficient cause to comply with the order" the Magistrate may..." issue a warrant for levying the amount due in the manner provided for levying fines..."

4. The levy of fine is provided for in Sec. 421 and the other allied provisions of the Code section 421 of the Code reads:

"Warrant for levy of fine: (1) When an offender bas 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. Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(a) Issue a warrant to the collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable of 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 reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357".

5. In the instant case, the learned Magistrate taking recourse to clause (a) of sub-section (1) of section 421 has issued a warrant of attachment for attaching the salary payable to the husband; as stated above.

6. The contention of the learned counsel for the petitioner is that clause (a) referred to above does not permit attachment and withdrawal of the future salary payable to his client and therefore, the order deserves to be quashed.

7. The question that fans for consideration in this case is:

Is a warrant for levy of the amount by attachment and withdrawal from out of the salary of a salaried person when it becomes payable to him so as to adjust that sum towards. the outstanding aim of maintenance ordered under section 125 of the Code impermissible under clause (a) of section 421 ?

8. In support of his contention the learned counsel for the petitioner places strong reliance on a Division Bench decision of Rajasthan High Court in Baldevi v. Ramnath1. The learned Judges in that case were considering in this respect, the scope of section 386 of the Old code. The main part of sub-section (1) of section 386 with its two clauses (a) and (b) of the old code are almost analogous in terms with the main part of sub-section (l) of section 421 of the new code with its two clauses (a) and (b). The learned Judges of the Rajasthan High Court in Baldevi are of the view that movable property referred in clause (a) of sub-section (1) of section 386 has reference only to a tangible movable property which can be seized, but not future salary payable. If it is future salary payable or salary that becomes due that can only be attached and realised according to them by taking recourse to clause Ib of sub-section (1) of section 386. It is in that connection their Lordships pointedly refer to the words "according to the civil process" found in clause (b) of section 386 of the Old Code.

9. Placing reliance on Baldevi the Ju