KHOKAN BHUNIA Vs. DIPALI BHUNIA

JUDGEMENT

(1.) THIS revisional application under Article 227 of the Constitution of India is directed against the order No. 11 dated 31. 10. 2005 passed by learned Additional District and Sessions Judge, fast Track Court, 1st Court, Tamluk in criminal revision No. 54 of 2004/ 422 of 2004 affirming thereby the order dated 01. 06. 2004 passed by learned S. D. J. M. , Haldia in Misc. Execution case No. 3 of 2004.

(2.) THE case, of the petitioner herein, in short, is that he was the opposite party in the case under section 125 Cr. PC filed against him by the O. P. No. l herein. The learned Magistrate allowed the Misc. Case directing the petitioner herein to pay Rs. 800/- per month as maintenance to the O. P. No. l herein with effect from 28. 03. 1996. The petitioner herein preferred a revisional application bearing No. 273 of 1998 which was dismissed by learned Additional Sessions Judge, 4th court, Midnapore. The petitioner herein thereafter preferred a revisional application before the Hon'ble High Court bearing CRR No. 1074 of 2002 which was also dismissed on 22. 12. 2003 for default. Thereafter, the petitioner filed an application for restoration of the said crr No. 1074 of 2002 and the hearing of the said application is still pending. The O. P. No. 1 herein filed an application on 03. 08. 2000 for non-payment of Rs. 3,200/- towards maintenance from 1. 4. 2000 to 31. 7. 2000. The learned Magistrate was pleased to issue D/w for realization of the said amount. On 4. 9. 2000 the O. P. No. 1 herein filed a petition before the learned Magistrate for issuance of warrant of arrest against the petitioner herein as nothing was recovered in execution of the D/w. The learned S. D. J. M. issued the warrant of arrest against the petitioner herein. The petitioner filed a petition to recall the warrant of arrest which was rejected by the learned Magistrate on 05. 3. 2001 fixing 04. 4. 2001 for E. R. of W/a. The petitioner preferred the Criminal Revision no. 185 of 2001 against the said order in the Court of learned Sessions judge, Midnapore bearing No. 127 of 2004 which is pending before the learned Additional Sessions Judge, Fast Track Court, 1st Court, Tamluk. In January, 2004 the O. P. No. 1 herein filed the Misc. Execution Case no. 3 of 2004 in the Court of learned S. D. J. M. , Haldia claiming arrears of maintenance amounting to Rs. 70,500/- for the period from 28. 3. 1996 to 31. 12. 2003. The petitioner appeared in the said execution case and filed written objection. The objection filed by the petitioner herein in the said Execution Case was rejected by the learned S. D. J. M. on 1. 6. 2004. The petitioner filed a Revisional Application bearing No. 54 of 2004/422 of 2004 challenging the order dated 1. 6. 2004 passed by the learned s. D. J. M. , Haldia in Misc. Case No. 3 of 2004. By the impugned order dated 31. 01. 2005 the learned Additional Sessions Judge dismissed the revisional Application and affirmed the order dated 01. 6. 2004 passed by learned S. D. J. M. , Haldia. Being aggrieved by the said order passed by the learned Additional Sessions Judge, Haldia, the instant application under article 227 of the Constitution of India has been filed.

(3.) THE learned counsel appearing on behalf of the petitioner submits | that in one execution petition the arrears of maintenance has been claimed for the period of eight years which is not permissible under section 125 (3) of the Cr. PC. The learned counsel further submits that although the Revisional Application against the order for maintenance under section 125 Cr. PC was pending before the Hon'ble High Court, calcutta, there was no bar on the part of the wife/o. P. No. 1 herein to file execution petition before the learned Magistrate for realization of arrears of maintenance, but, the execution petition was filed after the disposal of the Revisional Application by the Hon'ble High Court in connection with the Misc. Case under section 125 Cr. PC claiming arrears of maintenance for the period of eight years. It is contended that the revision is not the continuation of the original proceeding under section 125 Cr. PC and, as such, the claim for arrears of maintenance for the period of eight years is barred by limitation. It is submitted that the learned Additional Sessions Judge was not justified in affirming the order passed by the learned S. D. J. M. , Haldia and thereby dismissing the revisional Application. The learned counsel has referred to and relied on the decisions reported in 1980 Cr. LJ 1212 (Iftekhar Husian v. Smt hameeda Begum); 1990 Cri. LJ 2506 (Jangam Srinivasa Rao v. Jangam rajeswari and Aw.) and 2004 Cr. LJ 2455 (B. C. Shovananjappa v. Shantha alias Ushadevi and Anr. ).