KAMLA Vs. R L BILGAINYAN

JUDGEMENT

(1.) This revision has been preferred against the judgment of the 3rd Additional Sessions Judge, Varanasi, dated 20th May, 1982, allowing the revision of the opposite party No. 1 who was the husband Of the applicant.

(2.) The brief facts of this case are these. The applicant filed an application under section 115, Criminal. Procedure Code against the opposite party No. 1 claiming a sum of Rs. 7501-per month as maintenance for herself and her daughter Puja. This application was partly allowed on November, 27, 1980, and die Magistrate fixed Rs. 350/-as maintenance for the applicant and her daughter. When the distress warrant was issued for recovery of the [maintenance the opposite party on September 5, 1981 moved on application under section 126 (2), Criminal Procedure Code for setting aside the ex-parte order dated 27.11.1980. The application was contested by the applicant. On 4.2.1981 the Magistrate set aside the order on payment of Rs. 150/- as costs to the applicant. It appears that costs were not paid to the applicant within time. The opposite party thereafter moved an application on 17th February, 1982 for condo nation of two days delay in paying costs awarded by the Magistrate. The Magistrate rejected the application by the order- dated 5.3.1982 which had been challenged before the Sessions Judge in revision out of which the present proceedings arise. The Magistrate has held that as the non-compliance with the order setting aside the ex-parte order dated 27.11.1980 has become final due to non-payment of costs within the time stipulated for its payment he has no jurisdiction to recall the same.

(3.) Aggrieved, the opposite party No. 1 went up in revision. The learned Additional Sessions Judge held that the order dated 4.2.1982 by which the ex-parte order dated 27.11.1980 had been set aside was since not a conditional order the Magistrate committed an error in accepting the payment of costs and in proceeding with the case on merits. He also found that costs awarded by the Magistrate on February 4, 1983, could be recovered by the procedure prescribed for realisation of fine and hence its non-payment did not result in rejecting the application allowed on 4.2.1982.