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Present: Mr. Justice Wood Renton.CORNELIA v. SAWODIS.
P. C., Matara, 22,212.
Maintenance Ordinance,s.9—Imprisonmentbefore executionofwarrant—
Warrant for morethan onemonth's arrearsof maintenance.
Ordinance No. 19 of 1889, s. 9.
Where a Magistrateordered thedefendant in .acase under the
Maintenance Ordinance(No. 19 of1869)to givecertified bail in
Rs.200 topayRs. 60 arrearsofmaintenance fortea monthsat
therate ofBs.5 a month, orindefault of suchpayment within
one month to undergo rigorous imprisonment for fifteen days foreach month,—
Held, that the order of the Magistrate was wrong, inasmuch itwas not competentforthe Magistrateunder section 9ofOrdinance
No.19of 1889to pass a sentenceof imprisonment,except forthe
amount remaining due after the warrant for the levyi has beenexecuted.
Held, also, that itis competentunderthe saidsection to Issue
onewarrantforthe recovery ofmore than one month's arrearsof
PPLICATION ill revision. The facts and arguments sufficientlyappear in the judgment.
Walter Pereira, K.C., S.-G., in support of the application.
September 9, 1908. Wood Renton J.—
In this case the Police Magistrate of Matara has made an orderrequiring the respondent to give certified bail in the amount ofRs. 200 to pay Rs. 50 arrears of maintenance for ten months atthe rate of Rs. 5 a month, or in default of such payment withinone month to undergo rigorous imprisonment for fifteen days for.each month.
The Attorney-General contends that this order is bad in law, andasked that the proceedings be quashed in revision, on the grounds,first, that it is incompetent for a Magistrate under section 9 of theMaintenance Ordinance, No. 19 of 1889, to pass a sentence ofimprisonment, except for the amount remaining due after thewarrant for the levy has been executed; and, in the second place,that section 9 only authorizes the issue of a warrant for a singlemonth’s arrears of maintenance. ■
It is quite clear that on the first ground the proceedings must bequashed. It has been held by the High Courts in India under thecorresponding section (section 488, sub-section 3) of the Indian
10J. N. A 99909 (8/60)
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1908. Criminal Procedure Code that a Magistrate must be satisfied thatSeptember 9. the execution of the warrant has proved ineffective before heWood passes sentence of imprisonment (see Prinsep, Code of CriminalKenton J. Procedure, p. 478).
In my opinibn, on the construction of section 9 of our ownOrdinance, this interpretation of the law is clearly right. It is onlyin respect of what remains unpaid after the warrant has beenexecuted that the Magistrate has any power to order imprisonment.
I therefore quash the proceedings in revision. But at the sametime I think it right .to say that I do not agree with the contentionof the learned Solicitor-General that there is anything in section 9of the Maintenance Ordinance to prevent a Magistrate from issuingone warrant for the recovery of more than one month’s arrears ofmaintenance. Section 9 merely provides that- when a month’smaintenance is in arrears, the Court may issue a warrant for itsrecovery. It does not in terms prohibit ,the issue of a single warrant,for the recovery of more than one month’s arrears, and, as a matterof convenience, I think that it is desirable that -there should bepower to issue such a warrant. I am struck by the fact that Form 3in the schedule to the Ordinance which section 18 directs to be usedcontemplates in its recital the recovery of maintenance for morethan one month, and I find that .the view of the law I am nowtaking Is supported by a High Court ruling in Madras.1 It is truethat a contrary view was taken by Mr. Justice Hill and Mr. JusticeStevens in the case Bhiku Khan v. Zahuran.1 2 I prefer to follow theearlier decision.
1See 6 Madras High Coart Reports, Appendix, pp. xzii and xxiii
2(1897) I. L. R. So Cal. 291.
CORNELIA v. SAWODIS