V.K. Damodaran vs Ghedlamma and Others

Shamsuddin, J.—The counter-Petitioner against whom an order for payment of maintenance has been passed by the Court of the Judicial 1st Class Magistrate, Chengannur, in M.C. No. 34 of 1983 has preferred the above Crl. M.G. u/s 482 of the Code of Criminal Procedure (for short, the Code). The parties will be referred to as husband and wife for the sake of convenience.

The wife filed M.C. No. 34 of 1983 claiming maintenance for herself and her minor son, the 2nd Respondent herein on 27th September 1983. Notice was issued to the husband. It was served on him on 4th October 1983. An Advocate filed vakalath on his behalf on 22nd October 1983 and written statement was filed. The husband left India for Iraq on 27th October 1983 and was allegedly in Iraq till 6th January 1985. When the case was called on 21st July 1984 the advocate reported ''no instructions''. Thereupon the learned Magistrate proceeded under the proviso to Section 126(2) of the Code and set the Petitioner ex parte and posted the case to 30th July 1984 for evidence. On that day also the husband was absent. The wife was examined as P.W. 1 and an order was passed directing the husband to pay Rs. 250 per mensem to the wife and 150 per mensem to the child as maintenance from the date of the order i.e. 30th July 1984.

On 31st January 1985 the husband filed C.M.P. No. 376 of 1985 praying to set aside the order. He alleged in the affidavit filed in support of the above petition that from 27th October 1983 to 6th January 1985 he was in Jraq and he returned to India only on 10th January 1985, and came to know about the ex parte order of maintenance only on 28th January 1-985. His prayer wassto set aside the order passed on 21st July 1984 setting him ex parte and also the order dated 31st July 1984 awarding maintenance to the wife and child. The wife filed an objection saying that the petition was time barred.

It was argued on behalf of the husband before the learned Magistrate that three months period'' prescribed in proviso to Section 126(2) of the Code for setting aside the order of maintenance passed ex parte has to be reckoned'' not from the date of the order, but from the date of knowledge of the order. The learned Magistrate following the decision of a Division Bench of this Court in Thankamma v. Appukuttan Nairi 1975 KLT 131 : L.L.R. 1975 Ker 75, held that the period of limitation starts from the date of the order and not from the date of the knowledge of the order. The learned Magistrate also held that if the case of the husband was that the delay in filing the petition was beyond his control he could have filed a petition u/s 5 of the Limitation Act praying to condone the delay, but since that was not done, C.M.P. 379 of 1985 was liable to be dismissed as time barred. The learned Magistrate also rejected the contention raised on behalf of the husband, that since the requirement of Section 126(2) of the Code to take evidence in the presence of the counter-Petitioner or his counsel had not been complied with the evidence was not binding on the husband. The learned Magistrate pointed out that proviso to Sub-section (2) of Section 126 is in the form of an exception to the section and this permits the Court to take evidence exparte. The learned Magistrate further held that no reason was made out to condone the delay. In this view of the matter, the learned Magistrate dismissed the petition.

Aggrieved by the order, of the learned Magistrate, the husband filed Criminal Revision Petition No. 35 of 1985 before the Court of Session, Pathanamthitta. The learned Sessions Judge agreed with the veiw taken by the learned Magistrate and dismissed the petition.

The husband has filed the above Criminal M.C. challenging the orders of the lower courts and praying to set aside these orders and seeking to allow his petition, invoking the sinherent jurisdiction of this Court u/s 482 of the Code.

When the matter came up for hearing before a learned Single Judge, the learned Judge ordered this matter to be posted along with Crl. M.C. 904 of 1984 which had been referred to a Full Bench. It is thus the matter has come up before us.

Sri Siby Mathew, the learned counsel for the husband contended that the courts below erred in holding that the period of limitation commences from the date of order awarding maintenance. According to the learned counsel, the starting point of limitation is the date of knowledge of the order. The learned counsel alternatively contended that the learned Magistrate proceeded ex parte without the satisfaction required under the proviso to Sub-section (2) of Section 126 of the Code and in such cases it is the date of knowledge that is the starting point of limitation.

The question that falls for our consideration is whether the date of the order or the date of the knowledge of the order is the starting point of limitation in regard to a petition filed for setting aside an order for payment of maintenance passed under proviso to Sub-section (2) of Section 126 of the Code.

It will be convenient at this stage to refer to Sub-section (2) of Section 126 of the Code.

126 (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendants is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases:

Provided that if the Magistrate is satisfied that die person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

In other words, the procedural requirements in dealing with a petition u/s 125 of the Code of Criminal Procedure are as follows:

All evidence shall be taken in the presence of the counter-Petitioner or when his personal attendance is dispensed with, in the presence of the pleader and it shall be recorded in the manner prescribed for summons cases.

If the Magistrate is satisfied that the counter-Petitioner is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine ex parte which means in such cases, the presence of counter-Petitioner or his pleader is not essential at the time of taking evidence.

If such an ex parte order is made it may be set aside for good cause shown on an application made within three months from the date thereof.

It will be seen from a plain reading of the section that the starting point of limitation, in a case where the Magistrate has proceeded as per proviso to Section 126(2) is the date thereof, that, is date of the order. However, it has been contended that this Court and other High Courts have interpreted the expression from "the date thereof" to mean "the date of knowledge of the order".

In Raghavan Unnithan v. Vijayamma 1962 KLT 526, the corresponding provision of Section 488(6) of the Code of Criminal Procedure 1898 came up for consideration before a. learned Single Judge of this Court. . The learned Single Judge held that service in the case of a petition u/s 488 of the Code had to be effected as in summons cases and since notice wae not served as in summons cases but was sent by registered post and there was only refusal to receive the notice it could not be said that there was. wilful avoidance or neglect in attending the Court, and therefore further ex parte proceeding was without jurisdiction. The learned Judge further held that in such a case the bar of limitation of three months prescribed for filing petition for setting aside the order did not apply, since the impugned order was not an order "so made" as contemplated in the proviso. In the above decision an earlier decision of the Travancore Cochin High Court in C.A. George v. Chacko Joseph 1953 KLT 342, was relied on. There also it was held that a notice through post was not sufficient compliance with law and in such a case the Magistrate had no jurisdiction to determine the Case ex parte. However, in that case petition was filed within three months from the date of the order and hinge was, in any view of the case within time. The question whether the starting point of limitation was the date of the order or knowledge of the order did not arise for decision.

Our attention was also drawn to a recent decision of a learned Single Judge of this Court in Sumathi v. Peter 1985 KLT 1179. In that case Padmanabhan, J. held that that in order to proceed ex parte under the proviso to Section 126(1) there must be satisfaction of the Magistrate regarding the existence of either of the conditions specified therein, namely willful avoidance of service or wilful neglect to attend the Court and where summons is not duly served or where there is no proof of refusal of summons, an ex parte order will be illegal. The learned Judge also held that in a casein which the person against whom the order was made had no knowledge of the proceedings on the order, the filing of a restoration petition within three months fromt the date of the order did not arise. Unfortunately, the decision of the Division Bench in Thankamma v. Appukuitan Mair 1975 KLT 131, or the earlier Single Bench decision in Mahadeva Iyer v. Krishnammal 1970 KLT 292, which we will presently examine, were not brought to the notice of the learned Judge stnd therefore. His Lordship did not have the benefit of examining the position in the light of the observations contained,in those decisions.

As indicated above, the question came up for consideration in Mahadeva Iyer v. Krishnammal 1970 KLT 292. Dealing with the argument that it is the date of knowledge that is the starting point and also the decision in Zohra Begum alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and Another, , which supports this view, Krishna Iyer, J. drew attention to the distinction betweenan administrative authority and a Court in the manner of their Functioningan the following terms:-

However what has been overlooked in the Andhra Pradesh ruling, if I may say so with the great deference, is the fundamental distinction between an administrative authority and a Court in the manner of their functioning. A Court acts in public and cannot act in any other way except in exceptional circumstances and its judgments and orders are always pronounced in public. An administrative authority even when exercising quasi-judicial power can, and often does, work in camera and pass orders without a public pronouncement thereof. That is why an award under the Land Acquisition Act has to be communicated ''to such of the persons interested as are not present personally or by their representatives when the award is made''. The position is not different when an Income Tax Officer passes orders. A judge gives notice of the pronouncement of his judgment and does pronounce it in open Court (vide Section 366 Code of Criminal Procedure). An Administrative authority makes its order and communicates it subsequently in the manner prescribed by law. Natural justice insists on ''either actual or constructive communication of the order or of the said order to the party concerned''. If actual knowledge does not exist, ''an opportunity of knowing the order'' is a good substitute from which-the party concerned ''must be presumed to have had knowledge 6f the order'' . When a Court disposes of a case it acts in public and notice is invariably put up. Even a party who is absent has thus an opportunity of knowing the order about it and thus there is constructive communication thereof. There is, therefore, no further need for-a personal communication of a judicial order of a Court. Indeed, if limitation can begin in respect of setting aside of order or decrees of courts only after they are communicated to party strange results will follow. And it is useful to notice that where the Limitation Law makes knowledge of the order of a Court relevant, it says so. I therefore, take the view that while secrecy is repugnant to public justice and notice of the adverse order is a fact of natural justice, the cardinal distinction between a Court and other authorities sufficiently justifies the conclusion that the date of the order is the crucial date.

The matter again came up for consideration before a Division Bench of this Court in Thankamma v. Appukuttan Nair 1975 KLT 131, speaking for the Division Bench Narayana Pillai, J. observed as follows:

To accept the position that the starting point of limitation for an application filed under the proviso to the section is the date when the Respondent got knowledge of the order would plainly be to add words to the proviso which are not there, because the proviso is specific that the application has to be within three months of the order passed ex parte.

Dealing with the contention that as the Magistrate could proceed ex parte only after due service of summons on the Respondent and after the Magistrate was satisfied that the Respondent was wilfully avoiding service or wilfully neglecting to attend the Court the bar of three months in filing the application to set aside the order passed ex parte would not apply if the order was passed without complying with those provisions, the Division Bench observed as follows:

The provisions of the Code of Criminal Procedure of 1898 which define and regulate the jurisdiction of courts are those in sections 177 - 199 in Chapter XV and it is not the issue of summons, which does not occur in those provisions, that confers jurisdiction on courts over persons. Unlike the heads of jurisdiction like territorial jurisdiction or jurisdiction over subject matter or offences, which are all essential in that they are conditions precedent for acquisition of authority on the part of the Court, jurisdiction over persons is one, the defect, if any, in which can be waived or dispensed with and that is what has been done in the proviso which says that ever if no summons is served on the Respondent if the Court is satisfied that he is wilfully avoiding service or he is willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Unless it is Set aside, that decision is valid and binding. That cannot be so it is is issue of summons that confers jurisdiction over person.

In this view of the matter the Division Bench held that the starting point for limitation under the proviso to Section 488(6) of the code for an application to set aside an ex parte order passed, is the date of the order and not the date of knowledge of the order.

We would refer to decisions of other High Courts placed before us. In A.S. Govindan Vs. Mrs. Margaret Jayammal, , Hyder Khan v. Safoora Bee A.I.R 1968 Mys 98, Hari Singh Isar Singh Jat Vs. Mst. Dhanno Hari Singh, Smt. Parson Kaur v. Bakshish Singh AIR 1971 Punj. and Hari. 88 and Sunil Kumar Phukan Vs. Mt. Pratima Buragohain, it has been held that period of limitation of three months starts from the date of the order as clearly stated in the proviso to Sub-section (2) of Section 126 and not from the date of knowledge of the order, particularly since the words "date of knowledge of order" do not find a place in the proviso. In Doddaiah v. Smt. Sulochanamma and Anr. 1979 (2) M.L.J. 269, the view taken was that a Magistrate can set aside only an ex parte order "so made", that is, made in accordance with the first part of the proviso and if the order is not in accordance with that part, the Magistrate has no power to set aside the order. In Khembai Vs. Kajindar, (Karnataka H.C.), it was held that the period of limitation of three months cannot apply to an ex parte order passed not in accordance with the first part of the proviso and that order can be set aside at any time. In Meenakshi Ammal Vs. Somasundara Nadar, , it was observed that the view taken in A.S. Govindan Vs. Mrs. Margaret Jayammal, , sounded rather inequitable to the husband and may not be good law in the light of the decision in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, , in Revappa v. Gurusanthawwa AIR 1960 Mysore 168, Zohra Begum alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and Another, , Hemendra Nath Chowdhury Vs. Sm. Archana Chowdhury, Laxmandas v. Smt. Lachamibai 1968 9 GLR 116 , Balbir Singh Vs. Prem Wati, and Dhani Ram Vs. State and Another, , it was held that if there was no service in accordance with law, that is, as in summons cases or if the first part of the proviso has not been strictly observed, period of limitation commences from the date of knowledge of the order. The case in Joginder Singh Surmukh Singh Vs. Smt. Balkaran Kaur, , was decided by a Full Bench of the Punjab and Haryana High Court by a majority. Koshal, J. held that if an ex parte order is passed after the requisite satisfaction as contemplated in first part of the proviso, though satisfaction is arrived at wrongly or on insufficient or unacceptable materials, the order is "one so made" and will stand till set aside for good cause shown. Gopal Singh, J. took the view that in the absence of proper and requisite satisfaction arrived at by the Magistrate, ex parte order cannot be an order "so made" and period of limitation for filing an application to set aside the order will comence only from the date of knowledge of the order. H.R. Sodhi, J. agreed with the view taken in Hari Singh Isar Singh Jat Vs. Mst. Dhanno Hari Singh, and Parson Kaur Vs. Bakshish Singh, .

It is a cardinal rule of interpretation of statutes that ordinarily words in a statute must be given their plain, ordinary and natural meaning in the absence of ambiguity. Where the language of a statute is clear the clear meaning must be given effect to, deviation should be resorted to only in a case where it is absolutely necessary to carry put the scheme of the statute or to prevent mischief and advance remedy in accordance with the true intention of the legislature. A plain reading of the proviso to Section 126(2) would leave no room for any doubt that the period of three months is to be computed from the date of ex parte order and not from the date of the knowledge. We find from the provisions of the limitation Act of 1963 that whenever the legislature intended to prescribe date of knowledge as starting point of limitation it has specifically done so. The period of limitation prescribed in Article 123 of the Limitation Act is 30 days commencing from the date of the decree, but where summons or notice was not duly served it has been specifically provided that period of limitation has to be reckoned from the date of knowledge. The expression "date thereof" in the second part of the proviso to Sub-section (2) of Section 126 of the code can only mean that the period of three months is to be reckoned from the date of order.

Some of the decisions referred to above have taken the view that an ex parte order passed without due service, attempted or actual, would be an order passed without jurisdiction. Some decisions proceeded on the basis that where the first part of the proviso has not been observed strictly, in that there has been no due service, attempted or actual, of because due satisfaction has not been arrived at, the ex parte order cannot be regarded as an order "so made" and hence the bar of limitation cannot apply to such cases and the application to set aside the ex, parte order can be filed within three months of the date of knowledge. This view, with great respect, appears to be rather fallacious. First part of the proviso empowers the Magistrate to proceed to hear and determine the case ex parte, if he is satisfied that the person against whom an order for maintenance is proposed is wilfully avoiding service or wilfully neglecting to attend Court. Second part of the proviso states that "any order so made" that is, any ex parte order so made, may beset aside for good cause shown on an application made within three months from the "date thereof" that is the date of the order. The view accepted in some of the decisions is that unless the ex parte order is properly or correctly made after arriving, at the requisite satisfaction, it cannot be regarded as an "order so made" and the bar of limitation applies only if the "order so made" is sought to be set aside;. Brother words, if the ex parte order is one wrongly passed or passed without arriving at the requisite satisfaction or without due service, actual or attempted, it is not an "order so made" and hence bar of limitation cannot apply or at any rate the "date thereof" must be interpreted as "date of knowledge of the order." This view loses sight of the significance of the feature of the proviso viz., that it is only "an order so made" which can be set side and that too on an application if made within the period of limitation and on good cause being shown. If an illegal or even defective or irregular ex parte order is not an order "so made", it cannot be set aside by the Magistrate under the second part of the proviso since, according to this view, it is only an "order so made" which can be set aside. An ex parte order cannot be regarded as void or non est. There is no lack of jurisdiction to pass an ex parte order since it is not service or process which confers jurisdiction on the Magistrate over persons. Logical conclusion of the view taken in the decisions referred to above would mean that the remedy under second part of the proviso would be available only against proper and valid ex parte orders and not defective or irregular or even illegal ex parte orders. This conclusion would lead to absurdity. Such a result would not have been in the contemplation of the Legislature. Whether the ex parte order is defective or not, it can be set aside on good cause being shown, provided the application is made within three months from the date of the order.

It iS contended that there may be cases where the party may not actually have been served. Yet, the Magistrate proceeds on the basis that there was due service and neglect to attend Court and to insist in such cases that the application to set aside the ex parte order must be filed within three months from the date of the order will deprive the party of the remedy provided in second part of the proviso. It is contended that this would lead to inequitable result. This contention need not detain us since it will be open to the party to invoke Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the application to set aside the ex parte order. Section 29(2) of the Limitation Act provides that the provisions contained in sections 4 - 24 thereof shall apply even when the period of limitation has been fixed by any special or local law, unless their application is expressly excluded. Application of Section 5 of the Limitation Act is not expressly excluded for the purpose of the proviso to Section 126(2) of the Code. Hence Section 5 of the Limitation Act would apply to applications under second part of the proviso. We are supported in this view by the decision in Mangu Ram Vs. Municipal Corporation of Delhi, , where the Supreme Court held that Section 5 will apply to applications u/s 417(3) of the Code in view of Section 29(2) of the Limitation Act. It is also open to the party aggrieved by the order to invoke fevisional jurisdiction of the Court of Session or the High Court under sections 397, 399 or 401 of the Code. Until the order made ex parte is annulled or set aside by resorting to any of the methods recognised in law, the order is binding on the parties and cannot be treated as non est or null and void on the ground that the satisfaction of the Magistrate was not well founded or error was committed by the Magistrate in strictly conforming to the requirement of the first part of the proviso in proceeding to determine ex parte.

We are in respectful agreement with the view expressed in Thankamma v. Appukuttan 1975 KLT 131; Hari Singh Isar Singh Jat Vs. Mst. Dhanno Hari Singh, , Parson Kaur Vs. Bakshish Singh, ; A.S. Govindan Vs. Mrs. Margaret Jayammal, ; and the view expressed by Sodhi, J., in Joginder Singh Gurumukh Singh v. Balkaran Kaur 1972 Crl. L.J. 93. We hold that the period of limitation for an application to set aside an ex parte order Under second part of the proviso to Sub-section (2) of Section 126 of the Code will run from the date of the order, in case the Magistrate has proceeded or purported to have proceeded under first part of the proviso, no matter when the proceedings or the ex parte order came to the knowledge of the party concerned. Where, for any reason the party is unable to move an application within the period prescribed,, it is always open to him to have recourse to Section 5 of the Limitation Act, 1963.

In view of the strong reliance placed by the decisions which took the view that it is the date of knowledge of the order and not the date of the order that is starting point, of limitation on, the decision of the Supreme Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, , we will; examine how far the observations contained therein are applicable to a case falling u/s 126 of the Code.

In that case their Lordships were dealing with an award given by a Collector under the Land Acquisition Act,. 1895. No notice of the award as required by Section 12(2) of the said Act was given to the owner of property by the Collector. It was about two years after the award the owner learnt about the passing of the awards Thereupon he filed an application u/s 18 of the Land Acquisition Act seeking reference to the Court of the claim for enhanced compensation. The Collector took the view that the application was time-barred, since application was not filed; within six weeks from the date of award. It was held that the decision of the Collector in respect of the amount of compensation amounted in law to an offer or tender of the compensation to the owner of property under acquisition and hence communication of the offer was essential. In this context Their Lordships made the following'' observation.

Thus considered the date of the award cannot be determined'' solely by reference to the time when the award is signed by the Gollector or delivered by him in his office; it must involve the consider ration of the question as to when it was known to the party concerned'' either actually or constructively. If that be the true position then the literal'' and mechanical construccion of the words "the date of'' the award'''' occurring in the relevant section would not be appropriate.

Their Lordships of the Supreme Court also pointed out that if an award is treated as an administrative decision taken by the Collector, the said decision affects the rights of the owner of the property and therefore it is essentially fair and just that the said decision should be communicated to the owner of the said property. The making of the award cannot consist merely in the physical act of writing the award or signing it or even in filing it in the office of the Collector, it must involve the communication of the said award to the party concerned either actually or constructively. If the award was pronounced in the presence of the party it can be said to be made when pronounced. If the date of the pronouncement was intimated and it was pronounced on that date then the award was communicated on that date though the party was not present. If the date was not communicated and the party was not present, when the award was pronounced, the award can be said to be made when it was communicated to the party later. In this connection, it may also be noticed that u/s 12(2) of the Land Acquisition Act, 1894, it was obligatory to communicate the award, if the party or his representative was not present when the award was made.

No question of offer and acceptance arises in proceedings under the provisions of Section 126 of the Code. The essential difference between the functioning of a Court and an administrative authority has been explained and if we may say so with respect, correctly, by Krishna Iyer, J. in Mahadeva Iyer v. Krishna Animal 1970 KLT 292. There is no analogy between the functioning of the Collector in making an award and communication of the award under the Land Acquisition Act and the proceedings of the Magistrate under sections 125 and 126 of the Code. Hence the observations of their Lordships in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, cannot be called in aid for the interpretation of the proviso to Sub-section (2) of Section 126 of the Code.

Our attention has been drawn to the decision of this Court is Joseph v. Deputy Collector 1982 KLT 904 and Varghese v. R.T.A., Malappuram 1984 KLT 991, the former case, M. P. Menon, J. considered the starting point of period of limitation for an appeal to the Agricultural Tribunal against the order passed by the Conciliation Officer u/s 23 of the Agricultural Workers Act which prescribed a period of 30 days from the date of the order for filing an appeal. The learned Judge took the view in considering Section 23 of the Agricultural Workers Act the invocation of literal or grammatical construction would frustrate the legislative intention to provide a remedy of appeal to an aggrieved person. Similarly in the latter case, one of us (Bhat, J.) considered the starting point for period of limitation for filing a revision u/s 64A of the Motor Vehicles Act. The learned Judge pointed out that the person aggrieved by the order of the R.T.A. whether or not copy of the order was served on him, was required to produce either original or a certified copy of the order with the application and in the circumstances to hold that the time stipulated for filing the application would start to run from the date on which the order was made or signed or the decision was arrived at, would amount to stultifying the statutory remedy, for he cannot produce original unless it was served on him. It is in the circumstances mentioned above it was held in both these cases that there should be actual or constructive knowledge of the order and the period of limitation will run only from the date of actual or constructive knowledge. For the reasons already explained the circumstances which compelled the learned Judges to deviate from giving ordinary literary meaning in interpreting the words ''the date of the order'' in those cases are not available in the interpretation of a starting point of limitation in a case falling under Sub-section (2) of Section 126 of the Code.

On the other hand the scheme and object of the provisions of sections 125 and 126 of the Code warrant interpretation placed by us on the proviso to Sub-section (2) of Section 126 of the Code so as to give effect to the object of the Act. As we have pointed out in our judgment in Crl. M.C. No. 904 of 1985, the intention of the legislature in enacting these provisions in sections 125 and 126 of the Code is to prevent vagrancy and relieve distress by providing speedy remedy to a deserted wife or child or parent; these are provisions intended to provide social and economic justice to the abandoned wife, child or parent enacted in fulfilment of the constitutional mandate contained in Article 39 of the Constitution of India. We cannot shut our eyes to the various dilatory methods indulged in by the Respondents in such proceedings in order to avoid or delay the determination of their liability. It is to avoid such contingencies and deliberate abuses that the power is conferred on the Magistrate to determine the case ex parte. In the circumstances any interpretation put on the proviso to Sub-section (2) of Section 126 other than the one adopted by us will tend to defeat the very purpose for which it is enacted.

Another aspect emphasised by the decisions which took the view that the date of knowledge of the order is the starting point of limitation, is that there should be compliance with first part of the proviso to Sub-section (2) of Section 126 so as to attract the period of three months from the date of the order for filing an application to set aside the ex parte order prescribed by the 2nd part. As indicated above, the expression "so made" has been interpreted to mean the order in accordance with the first partof the proviso. The expression "service'''' in the first part is interpreted in some of those decisions to mean the service as contemplated in Chapter VI of the Code for the purpose of summons cases. In our judgment in Crl. M.C. No. 904 of 1985 1986 KLT 1378 we have explained the meaning of the expression "service" occurring in Section 126 of the Code and have pointed out that strict compliance with the provisions in Chapter VI is not necessary in effecting service in proceedings under sections 125 and 126 of the Code. We have held that service by registered post or through embassy will be sufficient. We have also indicated that though it is desirable that the Magistrate records in writing his satisfaction with regard to wilful avoidance of service or wilful neglect to attend the Court, the failure to do so will not render the order bad in law if materials in the case disclose that there was satisfaction. We are also of the view that if the order purports to be an order passed under the proviso, it will amount to an order "so made" though an error has been committed by the Magistrate in passing the order ex parte. In these circumstances we are unable to subscribe to the view that if there is no summons served in strict compliance with the provisions contained in Chapter VI of the Code, the bar of limitation of the period of three months prescribed by the second part of the proviso to Sub-section (2) of Section 126 of the Code has no application.

Coming to the facts of the case, we find notice was served on the husband on 4th October 1983, and an advocate appeared for him and a written statement was filed. When the case was called on 21st July 1984, the advocate reported "no instructions" and the Magistrate proceeded to hear and determine the case ex parte and an order awarding maintenance was passed on 30th July 1984. The application to set aside the ex parte order was filed only on 31st January 1985, long after the expiry of three months from the date of the order. There was no application to condone the delay and there was no prayer to condone the delay. The application to set aside the ex parte order was time-barred and the Courts below are correct in dismissing the same.

In the result, there is no merit in the Crl. M.C. and it is dismissed.