JUDGMENT :

Madhumati Mitra, J.

Opposite party no.1 filed an application under Section 125 of the Code of Criminal Procedure in the year 2012 claiming maintenance for self and her minor daughter before the learned Magistrate. That application was registered as Miscellaneous Case No.321 of 2012. In that case the opposite party no.2 prayed for an order of interim maintenance. On 17.04.2014 learned Magistrate directed the present petitioner to pay monthly interim maintenance of Rs.10,000/- (Rupees Ten Thousand) to the present opposite party and her minor daughter from the date of the order till final disposal of the application under Section 125 of the Code of Criminal Procedure or any modification as per law, if any, month by month which should shall fall due on expiry of every seventh succeeding months. Opposite party-wife was given liberty by the learned Magistrate to put the order of interim maintenance into execution.

2. On 16.12.2014 in proceedings under Section 24 of Hindu Marriage Act, the present opposite party-wife was allowed pendentilite alimony at the rate of Rs.8,000/- (Rupees Eight Thousand) for self and Rs.3,000/- (Rupees Three Thousand) for her minor daughter amounting to Rs.11,000/- (Rupees Eleven Thousand) in total.

3. Present petitioner approached before the learned Court for modification of the order dated 16.12.2014 passed in connection with the application under Section 24 of the Hindu Marriage Act regarding pendentilite alimony on the ground that the present opposite party-wife and her minor daughter were already allowed interim maintenance under Section 125 Code of Criminal Procedure. The prayer for modification of the order passed under Section 24 of the Hindu Marriage Act was turned down by the Learned Court on the ground that it was the settled principle of law that higher amount was to be paid by the husband and both the order under Section 125 Code of Criminal Procedure and under Section 24 of Hindu Marriage Act should be considered to be merged.

4. On 24.02.2016 the present opposite party-wife filed an application under Section 125(3) of the Code of Criminal Procedure praying for recovery of arrear of maintenance of sum of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand) for the period from February 2015 to January 2016 in connection with the order dated 17.04.2014 in Misc. Case No.321 of 2012. That application was registered as Misc. Execution Case No.25 of 2016. In that execution case distress warrant was issued against the petitioner. On 29.06.2017 the present petitioner prayed for an order to recall the said distress warrant on the ground that he paid the entire amount of maintenance for the period from February, 2015 to January, 2016 at the rate of Rs.11,000/- (Rupees Eleven Thousand) per months in terms of order under Section 24 of Hindu Marriage Act in Matrimonial Suit. Prayer of the present petitioner-husband was rejected by the learned Magistrate on 30.08.2017.

5. Learned Advocate for the petitioner has contended that the petitioner already paid the entire amount of maintenance to the opposite party and her minor daughter for the period from February, 2015 to January 2016 in terms of the order passed in the proceeding under Section 24 of the Hindu Marriage Act. It is his specific contention that the opposite party-wife was allowed maintenance for self and her minor daughter both under Section 125 Code of Criminal Procedure and under Section 24 of the Hindu Marriage Act amounting to Rs.10,000/- and Rs.11,000/- in total respectively. The total amount of maintenance passed in matrimonial proceeding under Section 24 of the Hindu Marriage Act is higher than the amount of interim maintenance passed under Section 125 of the Code of Criminal Procedure. According to him, when a party is asked to pay maintenance under different provisions of law, then the person is only required to pay such amount of maintenance which is higher.

6. In support of his above contention, learned Advocate appearing for the petit