Smt. Kamla vs R.S. Bilgainyan and Another

K.C. Agarwal, J.—This revision has been preferred against the judgment of the 3rd Additional Sessions Judge, Varanasi, dated 20th May 1982, allowing the revision of the opposite party No. 1 who was the husband of the applicant.

The brief facts of this case are these. The applicant filed an application u/s 125, Code of Criminal Procedure against the opposite party No. 1 claiming a sum of Rs. 750/- per month as maintenance for herself and her daughter Puja. This application was partly allowed on November 27, 1980, and the Magistrate fixed Rs. 350/- as maintenance for the applicant and her daughter. When the distress warrant was issued for recovery of the maintenance the opposite party on September 5, 1981 moved an application u/s 126(2), Code of Criminal Procedure for setting aside the ex-parte order dated 27-11-1980. The application was contested by the applicant. On 4-2-1981 the Magistrate set aside the order on payment of Rs. 150/- as costs to the applicant. It appears that costs were not paid to the applicant within time. The opposite party thereafter moved an application on 17th February, 1982 for condonation of two days'' delay in paying costs awarded by the Magistrate. The Magistrate rejected the application by the order dated 5-3-1982 which had been challenged before the Sessions Judge in revision out of which the present proceedings arise. The Magistrate has held that as the noncompliance with the order setting aside the ex-parte order dated 27-11-1980 has become final due to non-payment of costs within the time stipulated for its payment he has no jurisdiction to recall the same.

Aggrieved, the opposite party No. 1 went up in revision. The learned Additional Sessions Judge held that the order dated 4-2-1982 by which the ex-parte order dated 27-11-1980 had been set aside was since not a conditional order the Magistrate committed an error in accepting the payment of costs and in proceeding with the case on merits. He also found that the costs awarded by the Magistrate on February 4, 1983, could be recovered by the procedure prescribed for realisation of fine and hence its non-payment did not result in rejecting the application allowed on 4-2-1982.

The Additional Sessions Judge allowed the revision and directed the Magistrate after accepting the costs which had to be deposited by the opposite party No. 1 in cash to proceed to decide the application u/s 125, Code of Criminal Procedure in accordance with law after giving opportunity to the said opposite party to file his written statement. Against this order the present revision has been filed.

The order dated 27-11-1980 by which the application of the applicant for payment of maintenance was allowed was passed behind the back of the opposite party No. 1 and without hearing him. The learned Counsel for the applicant urged that since the summonses sent for service on the said opposite party had returned back with the endorsement "refused" the said order should be deemed to be on merits and not ex-parte. I am not prepared to accept this submission. The admitted facts are that the opposite party No. 1 was not heard before the order was made on 27-11-1980. Accordingly, it was nothing else but an ex-parte order. Under the proviso to Sub-section (2) of Section 126, Code of Criminal Procedure the opposite party could apply for setting aside the same.

Under the proviso to Sub-section (2) of Section 126, Code of Criminal Procedure if the Magistrate is satisfied that the person against whom an order for maintenance has been passed ex-parte, was absent on account of good cause shown to him, he can set aside the same. "Subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. "

The Magistrate was, in the instant case, satisfied that the opposite party No. 1 had good reasons not to be present in the case on which ex-parte order was passed. He, therefore, allowed the application and in allowing it, he imposed the costs of Rs. 150/-. This costs had to be paid before the next date of hearing as the same is clear from the order setting aside the ex-parte order. The opposite party No. 1 admittedly did not pay that amount. The question that was canvassed before me was on behalf of the opposite party that non-payment of costs could entitle the applicant only to execute the order imposing it in the same manner as fine is realised u/s 421 Code of Criminal Procedure. I find no merits in this submission. The words used in the proviso to Section 126(2), Code of Criminal Procedure require the party on whom costs has been imposed by the order setting it aside to pay the same in cash if he wants to participate in the proceedings by contesting the application for maintenance made against him. The proviso for setting aside the ex-parte decree to impose costs, which obviously has the purpose of compensating the party in whose favour the ex-parte order had been made. Payment of costs under the proviso is, in fact, a condition precedent for availing the order setting aside the exparte judgment given u/s 125, Code of Criminal Procedure. The power to impose costs on the court has been given to a court for making payment of compensation. The interpretation canvassed by the learned Counsel for the opposite party is that the amount could be realised only as fine is not acceptable on account of the language of the proviso not permitting the same. The language apart, the intention also of the legislature could not be that a party remaining absent may get the exparte order set aside and thereafter harass the applicant who has applied for maintenance u/s 125. By executing order of costs as provided by Section 421, Code of Criminal Procedure the intention is that if costs are paid the proceedings u/s 125, Code of Criminal Procedure could be gone into and the rights of the parties could be decided on merits. The proviso is that on payment of costs written statement could be filed. The purpose of the legislature can be achieved only if interpretation is that costs is to be paid in cash. I am, therefore, unable to find substance in the submission of the opposite party that costs could be realised by resorting to the method of execution of an order u/s 125, Code of Criminal Procedure or by availing Section 421 of the Code of Criminal Procedure.

The next question that arises is whether the learned Additional Sessions Judge could extend the time for payment of costs which had been made by the opposite party no, 1 within the time allowed by the Magistrate. The argument of the learned Counsel for the applicant was that as Code of Criminal Procedure does not confer any power on a Magistrate or a Sessions Judge to extend the time for payment of costs which had been awarded while setting aside the ex parte order once the time given had expired the court could not extend the same. It is true that there is no specific provision in the Code of Criminal Procedure to that extent and it is also correct that neither does the Magistrate or the Sessions Judge have inherent power to pass an order. Inherent power has been given only to the High Court by Section 482 of the Code of Criminal Procedure. However, it appears to me that the power to extend time for depositing the amount is ancillary and incidental to the main power of awarding costs by the proviso to Sub-section (2) of Section 126, Code of Criminal Procedure. For in a given case the Magistrate found that interest of justice required extension of time to pay the costs awarded it can do so in case an application for extension of time is made within the time or beyond that would be a discretion of the court to be exercised judicially. In the instant case, therefore, the Magistrate should have on the facts as found by the Sessions Judge condoned delay and extended time.

It appears that during the pendency of the revision in the court below the opposite party No. 1 had deposited a sum of Rs. 1700/- in compliance to the interim order made by it. The learned Counsel for the opposite party urged that the opposite party is entitled to get back the same. The applicant had no right to withdraw it. This amount has already been withdrawn by the applicant. I do not consider it to be in the interest of justice to direct the applicant to return the same. However, on the facts found and being satisfied that the case needs an expeditious disposal I direct the Magistrate concerned to decide it, if possible, within two months, from today.

In the result, the revision fails and is dismissed. Stay order dated 9-6-1982 is discharged. Let a copy of this order be furnished to the learned Counsel on payment of usual charges within three days.