SUBRAMANIYA PILLAI Vs. AJITHAKUMARY

JUDGEMENT

(1.) Maintenance was granted by Family Court, Thiruvalla in M.C.No.175/2005 in favour of respondents 1 to 3. They filed Annexure-A1 petition (C.M.P.No.207/2009) under Section 128 of Code of Criminal Procedure to issue warrant for realisation of the maintenance for the period from 26.7.2006 to 26.7.2007. By Annexure-A3 order Family Court passed an order initiating revenue recovery proceedings through District Collector stating that though respondents, petitioners before the Family Court, were present, petitioner, the counter petitioner, was absent. This petition is filed to quash Annexure-A3 order contending that in view of the first proviso to sub-section (3) of Section 125 of Code of Criminal Procedure, learned Judge should not have issued warrant for realisation of the amount beyond the period provided under the proviso and after receipt of the notice in Annexure-A1 petition, petitioner appeared and filed Annexure-A2 objection raising this contention, but, it was not considered by the learned Judge.

(2.) Learned counsel appearing for the petitioner and respondents 1 to 3 were heard.

(3.) Annexure-A3 order shows that the order was passed as if petitioner/counter petitioner did not appear on service of notice in C.M.P.No.207/2009 and did not raise any objection. Annexure-A2 objection filed by the petitioner shows that on the day on which Annexure-A3 order was passed, petitioner filed an objection, inter alia, contending that in view of first proviso to sub- section (3) of Section 125 of Code of Criminal Procedure, petition will not lie. Unfortunately, Family Court did not consider the objection.