Shitla Prasad vs Kishuni Devi

Murlidhar, J.—The short question in this revision arising out of the enforcement by the wife of an order dated 09-06-1976 for maintenance at Rs. 75/- per month with effect from 09-06-76 is whether the application dated 17-05-1979 is barred by time for any part of the arrears of maintenance in view of the proviso to Section 125(3) Code of Criminal Procedure. This proviso lies down that "No warrant shall be issued for the recovery of any amount due Under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due". Therefore, if literally applicable this proviso would mean that on the application dated 17-05-1979 a warrant for realization of maintenance allowance with effect from 18-5-1978 only could issue and the maintenance for the period 09-06-1976 to 17-05-1978 would be barred by time.

The Respondent''s (wife) contention, however, is that in view of the facts that a revision against the Order dated 09-06-1976 was dismissed on 07-10-1976 and an application for enforcement was bonfire prosecuted before the executive magistrate from 20-12-1977 to 29-03-1979 on which date he rejected it holding that he had no jurisdiction to enforce the order under the new Code of Criminal Procedure the period between 09-06-1976 and 07-10-1976 and 20-12-1977 to 29-03-1979 should be excluded u/s 14 of the Limitation Act for computation of the period of one year. The fact that the revision by the husband was decided on 07-10-1977 and that the wife''s application dated 20-12-1977 for enforcement of the order to an executive magistrate was rejected on 29-03-1979 is not disputed. On behalf of the Respondent wife reliance has been placed on Maulana Azizul Haq Kausar Naqvi and Another Vs. State, where it was held that the provisions of Sections 4 - 24 of the Limitation Act 1963, are applicable even to the Code of Criminal Procedure u/s 29(2) of the Limitation Act because there is no express exclusion of such application by any provision of the Code of Criminal Procedure. In the case before the Special Bench the provisions of Section 5, Limitation Act, were applied to Section 96 Code of Criminal Procedure under which an application to set aside a declaration of forfeiture of any publication lies "within two months from the date of publication in the official gazette of such declaration." On a parity of reasoning the provisions of Section 14, Limitation Act, would be applicable to the proviso to Section 125(3) Code of Criminal Procedure. There can be no question that the period during which a revision against the original order remained pending or the first application for enforcement of the order remained pending must be regarded as period during which the wife had been prosecuting with due diligence civil proceedings relating to the matter in issue in good faith. Learned Counsel tried to argue that the first application before the Magistrate who had no jurisdiction could not be regarded as a bona fide prosecution. I cannot agree. Section 14 itself speaks of proceeding in good faith before a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. There is absolutely no ground to suspect that the first application by the wife was not filed bona fide. In fact although the executive magistrate held on the authority of a single Judge decision of this Court that he could not deal with case the matter is a debatable one. Without going into that it is clear that the benefit of Section 14, Limitation Act, is available to the wife and if so even the arrears from 09-06-1976 to 17-05-1978 would be recoverable.

The revision, therefore, fails and is hereby dismissed. The stay Order dated 12-11-80 is vacated.