AKHTARI BEGUM Vs. AHAD HUSAIN

JUDGEMENT

(1.) The applicant has come forward with a prayer that the order of the Magistrate as well as the order of the revisional court both, rejecting the applicant's application for setting aside ex parte order dated 23-10-1982 be quashed. It would appear that the applicant was allowed maintenance, which order also became final. Later an application was preferred under S.127, Cr.P.C. for disentitling the applicant for maintenance amount due to changed circumstances, alleging that the applicant has remarried, it would further appear that the applicant prayed for adjournment, which was refused and then the application under S.127 Cr. PC was allowed ex parte.

(2.) In the present application under S.482, Cr.P.C. I am simply concerned with the question whether the Magistrate himself or the revisional court could have set aside the ex parte order as such. The applicant could well file a revision from the main order modifying or recalling the earlier order of maintenance, on merits on the ground of having been denied an opportunity to lead evidence. This, however, was not done. So, I am at present in this application confined to only one question whether there is any provision under which an ex parte order can be set aside. After an ex parte judgment and order has been set aside there are no such provisions in the Cr.P.C. analogous to Order 9, Rule 13, Cr.P.C. There is also no provision in the Cr PC for the review of an order under the Cr.PC or for the review of any judgment.

(3.) Learned counsel for the applicant relied upon the case Smt. Prema Jain v. Sudhir Kumar Jain 1980 Cr. LJ 80 (Delhi), in which it was held that where application for maintenance is dismissed for default of appearance the dismissal would be treated as administrative, rather than a judicial one. So much order can be set aside and 362, Cr PC will not stand as a bar. I have already dissented with this view in an earlier pronouncement in which this ruling was cited. Any order passed under S.125 Cr PC cannot be an administrative order. It is a judicial order. Revision lies against such final order. Modification of the order can be made under the provisions of the Cr.PC. Allowing maintenance is a judicial order and the defaulter even can be sent to jail, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant. When that is the position, any order under S.125. Cr PC cannot be considered as an executive or administrative order. In fact, earlier view of the Allahabad Court is also to the same effect. The other ruling relied upon is Kailash Nath Lahiri v. Shanti Lal and Bros. 1977 Cr LJ 1520, (Goa). What has been held in that case is that setting aside any judgment and order does not amount to alteration or review of that order. With great respects I am unable to agree with that view. In fact if this view is taken, it would actually nullify the bar of S.362. Cr.PC. That section clearly lays down that once a judgment and order has been signed it cannot be altered or reviewed except under any express provision for the same and only clerical errors can he corrected. When that is the position, obviously, that judgment and order will remain intact and enforceable and it will amount to laying down contradictory law by stating that the judgment will remain intact and cannot be altered and at the same time saying that though it cannot be altered it can well be set aside. As observed earlier, there is no provision in the Cr.PC for setting aside any ex parte judgment and order. In fact, it would amount to introducing provision of the nature of review if it is held that any order passed by the Magistrate though cannot be reviewed can only be set aside. I am, therefore, with great respects unable to agree with the view taken in the case of Daman and Due aforesaid.