Maksud Ali vs Haneefa and Another

P.K. Jain, J.—List has been revised.

None appears for the revisionist and opposite party No. 1. Perused the material on record. This revision is against order dated 9.10.91 and the recovery warrant dated 4.12.92. The office reported that the revision was barred by limitation as it was beyond time by 406 days. An application for condonation of delay was moved and it was stated in the accompanying affidavit that full facts and relevant materials have been mentioned in the affidavit filed with criminal revision. In the affidavit filed with the criminal revision, no ground has been stated as to why the revisionist could not file the revision against the impugned order dated 9.10.91 well within the stipulated period. It appears from the record that after learning about the ex parte judgment and order, the revisionist moved an application for setting aside the ex parte judgment and order on 29.10.91 and the said application was rejected by the court in default of the revisionist.

The revisionist has filed this revision before this Court against the ex parte judgment and order dated 9.10.91 after rejection of restoration application. He could have preferred a revision and could have also moved an application for setting aside the ex parte judgment and order.

Both the remedies could have been simultaneously availed by the revisionist. If he chooses one of the remedies and does not avail the remedy by filing revision challenging the impugned judgment and order within the period of limitation subsequently he cannot be allowed to say that since the proceedings for setting aside the ex parte judgment and order were pending, he could not file revision or could not avail other remedy which was available to him. Condonation of delay cannot be allowed on this ground. Consequently, the application for condonation of delay for filing the revision against the impugned judgment and order dated 9.10.91 cannot be allowed and the same is rejected. The revision against the judgment and order dated 9.10.91 is also rejected as being barred by limitation.

As regards order dated 4.12.92 directing the issue of recovery warrant, no illegality was pointed out in the said order. Once the restoration was rejected and the order granting maintenance allowance was in existence and not stayed or set-aside by any Court, the revisionist is bound to pay maintenance allowance as ordered by the Court. The revision against the order dated 4.12.92 is devoid of merit and is dismissed at the admission stage.

Before parting, it may be observed that one of the grounds taken by the revisionist is that he is ready to keep his wife with him. In case he really intends to keep and maintain his wife, he can approach the Court below u/s 127 of the Code of Criminal Procedure for alteration of the maintenance of the order.

The stay order dated 22.2.93 extended from time to time is hereby vacated.