BALBIT SINGH , Vs. PREM WATI,

JUDGEMENT

(1.) THE learned Additional Sessions Judge has recommended that this Court may quash the order of the Sub -Divisional Magistrate, Delhi (Shri K.K. Bhasin) dated 23rd January 1969 dismissing the application made by the husband dated 6th December 1968, praying, to set aside an ex parte decree of maintenance under Section 488 of the Code of Criminal Procedure in favour of his wife and child, on the ground that the same had not been filed within three months of the date of the ex parte decree as required by Section 488(6) of the Code of Criminal Procedure. Sub -Section (6) of Section 488 reads as follows : -

(2.) IT was stated by the husband that he came to know of process issued by the Court under Section 488 of the Code of Criminal Procedure from his relations and when he inspected the Court records on the 4th December 1968, he came to know that an ex parte order far maintenance under Section 448, Criminal Procedure Code had been passed against him on the basis that he had refused to receive the notice sent from the Court. He alleged that this endorsement of refusal of notice by him was not true. The learned Magistrate did not go into this question of the time at which the husband came to know of the passing of the said decree, because in his view no application for setting aside an ex parte order made under Section 488, Criminal Procedure Code could be made after three months from the date of the said order. In other words, this view totally eliminated any reference to the knowledge of the person against whom such an order was made.

(3.) THAT limitation in such a case commences to run only from the date of the knowledge of the order to the aggrieved party and not from the date of the passing of the order is a principle of general application. It would be needless to multiply authorities on this question. Reference, however, can be made to the decision of the Supreme Court in Raja Harish chandra Raj Singh v. Deputy Land Acquisition Officer, AIR 1961 SC 1500. That was a case under the Land Acquisition Act. The expression "the date of the award" used in proviso(b) to Section 18(4) of the Land Acquisition Act was held to mean the date when the award was either communicated to the party or was known by him either actually or constructively.