SURYAKANTH Vs. ALLAMAPRABHU ALIAS ALLAWWA

JUDGEMENT

(1.) THE order of the Family Court rejecting the petition filed by the petitioner under Sec. 126 (2), Cr. P. C. has been challenged in this petition. The respondent filed a petition under Section 125, Cr. P. C. on 27-7-1992 seeking maintenance of Rs. 500/ -. Objections were filed and the advocate for the petitioner also appeared but on 9-2-1994, the Presiding Officer was on leave. It is stated that thereafter the advocate has not appeared and ultimately the order under Sec. 25 was passed on 3-9-1994 awarding maintenance of Rs. 400/- per month. Petition under Sec. 126 (2) was moved on 29-9-1994. The learned Judge was of the opinion that the provisions of Sec. 126 (2), Cr. P. C. are applicable to set aside the ex parte order. But there is no provision for setting aside theex parte judgment. In other words, the application under Sec. 126 (2), Cr. P. C. could have been moved when the main matter under Sec. 125, Cr. P. C. was pending.

(2.) ARGUMENTS of both the learned Counsel for the parties heard. Section 125 authorises the Magistrate to pass an order in the circumstances given therein. Section 126 prescribes the procedure for a proceeding under Sec. 125. The relevant provision of Sec. 126 (2) is in dispute reads thus :-

(3.) A contention is raised that against the final order which is passed u/s. 125 which amounts to judgment against which the remedy of revision could be availed. But if it is for placing the other side ex parte by passing an order which could be challenged under the provision to Sec. 126 (2), Cr. P. C. The interpretation of the learned Counsel is not correct. Because when the proviso gives the power to pass the order ex parte which could be either by passing an order u/s. 125 or placing the other side ex parte and proceeding u/s. 125, Cr. P. C. contemplates passing of an order and therefore, it cannot be said that the order passed u/s. 125 is not an order or that the application u/s. 126 (2) is not maintainable.