SHEO KUMAR Vs. KANTI DEVI

JUDGEMENT

(1.) IN this case the applicant had absented himself during the maintenance proceeding before the Magistrate. The Magistrate passed an exparte order against the applicant. On 3-5-1977 an application was made before the Magistrate for setting aside that ex parte order, but that application was rejected as per paragraph 5 of the applicant's affidavit. The Magistrate then passed an order granting maintenance on 24-5-1977. Thereafter the applicant remained indifferent and his stand is that the wife was keeping him under the impression that she will compromise though she was taking steps for execution of the order. It is further stated that the applicant got aware of it only when a warrant of arrest was issued and then he preferred an application under Section 128 CrPC on 18-3-1978 and the proceeding for execution was stayed. According to him, there was a case under Section 326/34 IPC also in a proceeding under Section 482 CrPC, the execution of the order remained stayed. Thereafter, an application was preferred on 14-7-78 before the Magistrate and the Magistrate stayed the execution of the order.

(2.) IT is further stated that ultimately the revisionist was acquitted in the case under Section 326/34 IPC on 19-5-1982. IT is further stated that the applicant preferred an application for settling aside the ex- parte order of the Magistrate on 18-3-1982, which was rejected on 17-2-1983. IT is then stated that thereafter the revision was preferred against that order and that that revision was also rejected on 9-6-1983. The date on which the revision was filed is not given. The law of limitation is; well settled that every- day's delay has to be explained. Section 14 of the Indian Limitation Act also provides that the period during which any party bonafide carried on proceeding before some other court, not having jurisdiction, is to be excluded. I may also prefer to accept the argument that if a revision was pending under any wrong advice even then the period during which the revision was pending may be excluded. Taking an indulgent view even the period spent in proceeding for setting aside the ex- parte judgment as per application preferred on 18-3-82 and decided on 17-2-83 may also be excluded for arguments sake. But that would not cover the entire period. The judgment and order is of 24-5-1977. The applicant was well aware of the proceeding for maintenance going on against him. He should not have waited for any warrant to be issued in execution. In fact the application dated 3-5-1977 was rejected on 28-3-1977 and the applicant was well aware that ex- parte judgment will follow. Yet he did not bother to file any revision. His stand urged before me is not that he did not get aware of the judgment but that the counsel advised him that he should file a revision against the order providing for ex -parte proceeding itself and once that order is set aside the judgment and order for maintenance itself would automatically get set aside.