NIMA WANGDI SHERPA Vs. SANGAY LHAMU SHERPA

JUDGEMENT

(1.) Order dated 15.06.2009 passed by the learned Sessions Judge, Darjeeling in Criminal Revision No. 4 of 2009 affirming the order dated 30.03.2009 passed by the learned Additional Chief Judicial Magistrate, Kalimpong, Darjeeling in Misc. Execution Case No. 5 of 2008 arising out of M.R. Case No. 10 of 2006 under section 125 of the Code of Criminal Procedure, 1973 refusing to dismiss a part of the claim as barred by limitation has been assailed. It appears that in the instant case execution proceeding had been instituted to enforce payment of remainder of the dues arising from the interim maintenance allowance payable from May 2006 to April 2008 being to the tune of Rs. 1,47,000/. Part of such claim was resisted in the courts below on the ground that the execution proceeding had been instituted beyond the period of limitation as stipulated by section 125(3) of the Code of Criminal Procedure, 1973 and that no claim earlier than May 2007 was admissible.

(2.) The order of interim maintenance was passed on 29.05.2006. Such order was stayed by the revisional court on 12.06.2006. The stay order was a conditional one. It appears that the condition of paying a part of the interim maintenance upon which such stay was granted, in fact, was discharged by the petitioner. Finally, the order of stay was vacated on 04.06.2007 and the execution proceeding was instituted on 17.05.2008.

(3.) Mr. Basu, learned counsel appearing for the petitioner, submitted that the order of stay passed by the revisional court was an order of stay of operation of the order of interim maintenance and not an order of stay on execution thereof. He submitted that in absence of a stay on execution of the said order, benefit in respect of such period for the purposes of limitation cannot be given to the opposite party. He relied on M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, 1992 AIR(SC) 1439 and Anandilal & Anr. v. Ram Narain & Ors., 1984 3 SCC 561.