Paritosh Das vs Smt. Kalyani Das

Ashis Baran Mukherjee, J.—The revisional application arises out of an order dated November 24, 1995 passed by the learned Sub-Divisional Judicial Magistrate, Contal in Misc. Execution Case No. 341 of 1993 and 111 of 1994. The application has been preferred u/s 482 Code of Criminal Procedure with the prayer for setting aside the said impugned order.

The short history of the case is that O.P. No. 1 claiming herself to be the wife of the Petitioner filed an application u/s 125 Code of Criminal Procedure claiming maintenance for herself and for her two children alleged to have been begotten out of the wed-lock. On September 15, 1993 an exparte order was passed against the Petitioner directing him to pay maintenance at the rate of Rs. 300 per month for O.P. No. 1 and at the rate of Rs. 200 per month for each of the minor sons. On October 5, 1993 after the Petitioner became aware of the exparte order preferred an application for setting aside the same. On January 21, 1994 the Magistrate passed a conditional order for setting aside the ex parte order, the condition being to deposit a sum of Ps.,500 at cost in favour of the O.P. No. 1. The present Petitioner preferred a revisional application before this Court being Criminal Revision No. 314 of 1994. On July 5, 1994 the revisional application was rejected by this Court when he preferred a special leave to appeal before the Supreme Court but it was rejected on February 20, 1995 O.P. No. 1 instituted two execution cases being Misc. Execution Case No. 341/93 and No. 1.11/94 in the meantime. On November 24, 1995 the Petitioner deposited Rs. 500 as cost in compliance of order dated November 21, 1994 in original Misc. Case No. 311/93. The said sum was accepted but by the impugned order he also rejected the written objection preferred by the present Petitioner and directed him to pay payment by January 4, 1996. It is contended that as soon as the cost of Rs. 500 was accepted it should be deemed sufficient compliance of the earlier order dated January 21, 1994 and the same automatically puts an end to the ex parte order of maintenance. It is contended that accordingly the subsequent direction to pay on the strength of the execution cases is anomalous.

I have heard the learned Advocate appearing for the Petitioner and also the learned Advocate appearing for the O.P. No. 1. The argument advanced on behalf of the Petitioner is that the Magistrate as soon as accepted the cost, the ex parte order of maintenance shall be deemed to have come to an end and as such there being no order of maintenance in the eye of law, there cannot be any question of continuance of execution cases.

On the other hand, it has been argued the O.P. No. 1 that the cost was not paid within the time allowed by the Court and as such it cannot be a sufficient compliance of the order of the Court.

I have given my careful consideration to the submissions of both the sides and have scrutinised the relevant orders passed in the aforesaid Misc. Case as also the execution cases. It is true that on January 21, 1994 an order was passed for depositing a cost of Rs. 500 by February 11, 1994 as a condition precedent to the setting aside of. ex parte order of maintenance. But it will appear that on February 11, 1994 it is the present Petitioner who filed an application to bringing stay order from this Court against the impugned order dated January 21, 1994 and certain time was given for the parties but there was neither any prayer for extension of time beyond the one mentioned in the order dated January 21, 1994 nor any such relief was also given by the learned Magistrate. It is true that at a much later stage, namely, on November 24, 1995 such sum was deposited when the payment was accepted at the risk of the party. Such payment cannot satisfy the order dated January,21, 1994 and as such it cannot be taken to be a sufficient compliance of the said order. As a natural corollary the ex parte order of maintenance passed earlier holds good and as such the execution cases started on the basis of such order of maintenance are perfectly in accordance with law. The impugned order of the learned Magistrate is in consonance with law and accordingly there is no merit in the revisional application and this Court shall not exercise its inherent power in the facts and circumstances of a case of similar nature.

Accordingly, it is ordered that the revisional application stands dismissed on merit. All stay orders are vacated. Let the misc. execution cases quoted earlier proceed in accordance with law. The L.C.R. to go down as early as possible.