SHAMA RAO Vs. PREMILAMMA

JUDGEMENT

(1.) This revision petition is directed against the order of the JMFC Chincholi wherein he nas issued a levy warrant for recovery of Rs.6,200 from the petitioner said to be due from him for maintenance.

(2.) The facts leading to the present petition are these: Against the present petitioner who is the husband, the two respondents, his wife and a, minor daughter, applied for maintenance, under Sec.488i of the then CrlPC and that application was tiled on 24-6-l966. The application was numbered as 15/5 of 1966 in the Court of the JMFC Chincholi. The claim was made for Rs.100 per month as maintenance to the wife and the daughter with effect from the date of the application i.e., 24-6-66. That application was allowed on 8-3-1967. It appears a revision was filed which went upto the High Court and was ultimately dismissed on 3-6-1969. In some interlocutory application proceeding, Rs.500 was ordered to be deposited by the husband which he did. On 8-8-1967 the respondents filed the Execution Petition No.15/5/67 for recovery of maintenance for 13 months with effect from 24-6-66 and in all Rs.1,300 were claimed. It appears that the entire amount was not paid and as such a second application for execution was filed on 5-9-1969 which was numbered as 26-4-69 and the claim was made upto 24-8-69 which was of Rs.2,500 and Rs.400 said to be the balance of the previous application. It appears, thereafter, Rs.3,000 were deposited by the husband and that brought an end to the previous two execution applications darted 8-8-67 and 5-9-1969.

(3.) On 23-12-1969 OS.80/69 was filed by the petitioner-husband, against the respondents and in that suit, inter alia the relief claimed was that besides Rs.3,000 which was paid as maintenance nothing was due to the respondents. Obviously, that amount was already paid by the petitioner-husband. The suit was decreed in the Court of the Munsiff on 30-8-1972. Thereafter, an appeal was filed before the Civil Judge, Gulbarga; and it was allowed on 3-8-1974. In consequence thereof, the suit was dismissed. At present R.S.A.1379 of 1974 is pending in the High Court against the judgment of the learned Civil Judge. Thereafter, on 7-11-1974, the third execution application No.49/4 of 1974 was filed by the respondents for recovery of maintenance right from 24-8-1969 upto 23-10-74, the total being Rs.6,200. Against this execution application , the petitioner-husband took the plea of limitation under S.125 first proviso to sub-section(3) of the Code of Criminal Procedure of 1973 and claimed that no warrant could be issued for the recovery of any amount as the application for execution was not made to the Court within a period of one year from the date on which the maintenance become due. It is undisputed that the maintenance was to be paid every month and therefore it was stated that whatever arrears fell within one year for recovery, the rest of the claims was time barred. That objection has been repelled by the learned Magistrate and the only ground sustained by him was that the third execution application was the continuance of the previous two applications. Therefore, according to the learned Magistrate, the plea of limitation was not sustainable and he has ordered for the levy warrant against the petitioner-husband. Against that order of the learned Magistrate, that the present revision is filed.