Amal Guha vs The State and Another

A.C. Sen Gupta, J.—This revisional application under Sections 397, 401 and 482 of the Criminal P.C. has been filed by the petitioner Amal Guha against his wife the opposite party No. 1 in respect of two orders - one dated 28-8-78 and the other dated 29-1-80, The order dated 28-8-78 was an order passed against the petitioner ex parte ordering payment of maintenance to his wife, the present opposite party No. 1. After this order was passed ex parte on 28-8-78, the present petitioner filed an application u/s 126(2) of the Criminal P.C. for setting aside the ex parte order for maintenance on 5-4-79. The learned Magistrate rejected that application on two grounds, viz., that the petition was filed more than three months after the date of the ex parte order and that the petitioner failed to make out a prima facie case that he came to know of the ex parte order on 18-3-79 as alleged in his petition.

In view of the divergence of opinion as to whether in an application u/s 126(2) of the Criminal P.C. the period of three months should be counted from the date of the ex parte order sought to be set aside or from the date of the knowledge of the petitioner thereof, this case has been referred by the learned Judge presiding over a single Bench of this Court to the Division Bench. We are inclined to accept the decision reported in Bina Ganguli Vs. Rash Behari Ganguli, to the effect that such an application for setting aside an ex parte order would have to be filed within three months from the date of the order. The plain grammatical meaning of the provisions contained in Section 126(2) of the Code is that such an application for setting aside an ex parte order should be filed within three months from the date of the order itself. There is no scope within the limits of the language of the section for the inference that such an application may be filed within three months from the date of knowledge. We, accordingly, uphold that such an application u/s 126(2) should be filed within three months from the date of the order. The application u/s 126(2) having been filed long after three months from the date of the ex parte order, the application was rightly rejected by the learned Magistrate.

The revisional application is accordingly rejected and the Rule is discharged

The records be sent down forthwith.

J.N. Hore, J.

I agree.