Whether warrant for attachment of future salary can be issued legally?

Our attention was also invited to a decision of the learned Single Judge at Nagpur Bench of this Court in Bhagwat Baburao Gaikwad and Anr. v. Baburao Bhaiyya Gaikwad and Anr., Criminal Application No. 794 of 1993, decided on September 28, 1993 (since reported in 1994 (1) Mh.L.J. 202). The learned Single Judge (M.S. Vaidya, J.) held in the said case that a warrant for attachment of the salary of the husband can be issued by the Magistrate for recovery of the arrears of maintenance allowance claimed by wife and child. Similarly, the learned Single Judge (K.P. Mahapatra, J.) of the Orissa High Court in Surekha Mrudangia v. Ramahari Mrudangia, 1990(1)Cr.L.C. 84, held that, for default of payment of maintenance, salary of the husband shall be liable for attachment when it becomes due at the end of the month and till then the writ of attachment shall remain dormant so as to revive at the appropriate time. In our opinion, the propositions enumerated in these two cases lay down the correct propositions of law. The learned Single Judge of Orissa High Court also thought it fit to recommend for amendments of the provisions of Sections 125 and 421 of the Criminal Procedure Code, in such a manner that it shall not be difficult for the deserted wives and children to recover the arrears and current maintenance. We are also of the view that a time has come when Sections 125 and 421 of Criminal Procedure Code require suitable amendments so as to enable the deserted wives, children and the parents to recover maintenance in a more effective and speedy way. The present procedure is not only time-consuming but also cumbersome and as such, it is a call of the day that these provisions are suitably amended. Further, it cannot be lost sight of the fact that the term salary has also undergone a radical change since the enactment of Section 421 of Criminal Procedure Code, 1973. In view of this we, therefore, respectfully disagree with the views expressed by our learned Single Judge (Puranik, J.) in Jagoo Sarju v. Ramkali Jagoo, 1982 Mh.L.J. 859, and hold that a salary becomes a tangible movable property when it accrues to a person and as such a warrant for attachment of such salary can be issued but it remains dormant and pending till the salary becomes actually due so as to make the warrant effective. The issuance of a warrant for attachment of the future salary at the inception cannot, therefore, be regarded as unauthorised and illegal.

Bombay High Court

Naseera Begum And Ors. vs Syed Habibur Rehman And Anr. on 5 October, 1993

Equivalent citations: (1995) IILLJ 462 Bom, 1995(1)MhLj321

Bench: B Deshmukh, S Dani

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Whether salary of Judgment debtor can be attached for unlimited period of time in execution of money decree?

 Bapu Gadgil
Vs.
Respondent: Smt. Rama

Hon'ble Judges/Coram:
N.V. Dabholkar, J.

Civil Procedure Code, 1908 - Section 60(1)(i) Proviso - Attachment - Properties liable - Attachment of salary for a period of twenty-four months - Exempt from attachment for a gap of twelve months - Salary not liable again after time gap of twelve months for the execution of the same decree.

Citation: 2003(1)ALLMR726, 2003(105(1))BOMLR684, I(2003)DMC770

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Whether salary of husband can attached for recovery of maintenance allowance granted to wife?

Both the learned counsel arguing the case before me then urged a yet another point pertaining to the interpretation of S. 421(1) of Code of Criminal Procedure. Pointing out that the aforesaid sub-section has said, "when an offender has been sentenced to pay a fine, the Court passing sentence may take action for recovery of a fine, in either or both of the following ways." Emphasis was led on the word "may take action". It was submitted, quite with force, that the provisions contained in this sub-section were not restrictive provisions, but they were enabling provisions. It was, therefore, submitted that, even if a restricted interpretation was put on clause (a) of the said section, the section itself did not bar the jurisdiction of the Court to recover the amount of fine in ways other than the two ways enumerated in the section. Sub-section (1) enables the Criminal Courts to recover the levy of fine in two ways specified in clauses (a) and (b) of the said sub-section leaving it open to the Courts also to adopt other legal measures for levying of the fines. In that context also, reference was again made to the provisions contained in S. 83 of the Code of Criminal Procedure by submitting that the mode indicated in Ss. 83(3) and 83(4) both read with S. 85(2) could be used for attachment and sale of intangible moveable assets of a person liable to pay the amount which was leviable as fine. This contention also contains a good deal of force.
When a money lender or a Bank has got the right to attach the salary or an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband's salary for recovering the arrears of maintenance granted by the Magistrate under S. 125(3). A wife who is entitled to maintenance under S. 125, Cr.P.C. and who is also entitled to recover the arrears under S. 125(3), cannot be placed worst than a money lender. What is available under S. 60, C.P.C. for a maintenance decree-holder, can also be made available under S. 125(3), Cr.P.C. for the recovery of arrears of maintenance."

Bombay High Court

Bhagwat Baburao Gaikwad And ... vs Baburao Bhaiyya Gaikwad And ... on 28 September, 1993

Equivalent citations: 1994 (2) BomCR 695, 1994 CriLJ 2393, II (1994) DMC 195

Bench: M Vaidya

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