For the purpose of enforcement of a maintenance order, the Magistrate is required to follow the procedure prescribed in Section 386 of the Code of Criminal Procedure.

( 1 ) THIS is a reference by Sri P. Dutta, Additional Sessions Judge, Second Court, Alipore under Section 438 of the Code of Criminal Procedure recommending that an order dated 1st November, 1972, passed by Sri C. D. Chatterjee, Magistrate 1st Class, Alipore ordering attachment of Rs. 150/- from the pay of the second-party and also issuing the said order on the State Government, the employer of the second party, to remit the amount to the court by the 15th of every month in a proceeding under Section 488 being case No. M 656 of 1966/t. R. 571 of 1970, may be set aside.

( 2 ) THE facts leading on to the Reference are short and simple. An order of maintenance was passed under Section 488 of the code of Criminal Procedure in favour of the first party Smt. Renuka Paul at the rate of Rs. 75/- per month. The order was passed against the second party Dhirendra Nath Paul with effect from 22nd December, 1966. The second party however made default in payment to the extent of Rs. 2700/- from October, 1969, to September, 1972. The learned Magistrate, therefore, issued an order of attachment of the salary of the defaulting husband to the extent to Rs. 150/- per month from November 1972 and directed the Government of West Bengal, under which the husband is an employee, to remit the money to the court of the learned Magistrate by the 15th of every month commencing from 15. 11. 72. A revisional application was taken therefrom to the learned Sessions Judge, Alipore by the second party Dhirendra Nath Paul and Sri P. Dutta, Additional Sessions Judge, Second Court, Alipore ultimately made the Reference referred to above.

( 3 ) MR. Chaitanya Chandra Mukherjee, Advocate, with Mr. Susil Kumar Dutta, Advocate, appeared in support of the Reference on behalf of the second party Dhirendra Nath Paul. Mr. Barindra Nath Roy, Advocate appeared on behalf of the State and supported the Reference. Nobody appeared on behalf of the first party, wife.

( 4 ) HAVING heard the learned Advocates on behalf of the second party as also the State and on going through the letter of Reference and the connected materials on the record I hold that the Reference has been rightly made recommending that the order of attachment passed by the learned Magistrate dated 1. 11. 72 should be set aside as the same has been passed in non-conformance to the procedure established by law. Under the provisions of Section 386 (1) (b) of the Code of Criminal Procedure the learned Magistrate concerned can issue a warrant for the levy of the amount due, by attachment and sale of any movable property belonging to the defaulter or he can under the provisions of Section 386 (1) (b) issue a warrant to the Collector of the District authorizing him to realise the amount by execution according to the civil process against the movable or immovable or both of the defaulter. There is some doubt as to whether future salary is a movable property and in any event if the salary of the defaulting husband in this case is to be attached the provisions of Section 386 (1) (b) must be followed strictly. The order passed in this context by the learned Magistrate on 1. 11. 72 is that Rs. 150/- be attached from the pay of the second party and an order was issued accordingly on its employer, viz. , the State of West Bengal and the said amount was to remitted to court by the 15th of each month, the first payment being due on 15. 11. 72. It was further directed that when the amount is received it should be apportioned into Rs. 75/- for the current and Rs. 75/- for arrear for October, 1972. This order is not in conformance to the provisions of Section 386 (1) (b) enjoing that a warrant to the Collector of the District may be issued in this behalf by the learned Magistrate to realise the amount by execution according to the civil process. Under the provisions of Sub-section (3) where the court issues the warrant to the Collector as mentioned above such warrant shall be deemed to be a decree and the C