1. The short question that arises for consideration in this petition is:

(1) Whether the remedy by way of issuing a distress warrant is a pre-requisite to enforce an order for maintenance against a defaulter-husband so as to issue warrant in order to commit him to jail? and

(2) Whether it is an invariable rule that if a small parcel of land or a building belonging to the defaulter husband is there, it should be attached and sold and only thereafter, for the amount that remains unpaid, he can be committed to jail?

2. The petitioners are the wife and two children in favour of whom an order for maintenance was passed by the Family Court Manjeri, at the rate of Rs.350/- per month to the wife and Rs.300/- each per month to the two children. Thus, the total amount payable by the 1st respondent-husband to the petitioners herein comes to Rs.950/-per month. An application was filed by the petitioners under Section 125(3)/128 Cr.P.C. to execute the order. It is pointed out by the learned counsel for the petitioners that a landed property measuring four cents in which a residential house is also there, stands in the name of the respondent-husband. But the fact that the house mentioned above is the one where the petitioners are residing was not taken serious note of by the court below.

3. Two remedies are available for the enforcement of the order. The first remedy is by issue of a warrant for the levy of the amount as if it is a fine under Sec.421 of the Code, by attachment and sale of any moveable property of the defaulter and/or a warrant to the collector empowering him to realise the amount as arrear of land revenue from the moveable and immovable property or both of the defaulter. The other remedy is by sentencing the defaulter/husband for the whole or in part of each month's allowance remaining unpaid, to imprisonment for a term which may exceed to one month or until payment if sooner made. Therefore, the contention that was advanced was that the first thing that must be done is to issue a distress warrant. It is only for the whole or part of each month's allowance that remains unpaid after the execution of the distress warrant that the defaulter can be committed to jail. Therefore, the view seems to have been taken by the court below is that the warrant empowering the District Collector to realise the amount of maintenance, as if it is arrear of land revenue, having been found not unexecutable, warrant authorising the defaulter husband to be committed to jail would be illegal.

4. The learned counsel for the petitioners would submit that the remedy by way of issuance of distress warrant need not be exhausted before an order for imprisonment can be made. No doubt, if an immovable property is attached but not sold it may at first blush appear that the warrant empowering the District Collector for sale of the immovable property for realisation of the amount due from the defaulter is executable and so that remedy should be resorted to. But it cannot be treated as an invariable rule as in the present case. Sentencing the defaulter husband to jail is a mode of enforcement, a mode of satisfaction of the liability. That liability can be discharged by him only by making actual payment of arrears of maintenance. An order committing the defaulter husband is one of the means for achieving the end of enforcing the order to recover the amount of arrears. Here the respondent-husband seems to have contended that so long as the immovable property with the house therein is not sold, no order committing him to jail can be passed. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge but to make him pay the amount due to the deserted wife and children. Therefore, I hold that the view taken by the court below that without effecting sale of the land with building thereon, no warrant to commit him to jail can be issued, cannot in the circumstance of this case be sustained. The objection that was ra