SACHINDRA KUMAR SAMAL Vs. MADHUSMITA SAMAL

JUDGEMENT

(1.) The petitioner has approached this Court assailing the correctness of the impugned order under Annexure-1 dtd. 7/6/2022 passed in CRP No.117 of 2019 by the learned Judge, Family Court, Cuttack on the ground that restoration of the application under Sec. 125 Cr.P.C. dismissed for non prosecution could not have been entertained since the court cannot recall or review its order in view of Sec. 362 Cr.P.C.

(2.) As claimed by the petitioner, opposite party No.1 wife filed an application under Sec. 125 Cr.P.C. in the Family Court registered as CRP No.89 of 2015, however, since no steps were taken repeatedly, it was dismissed for default, whereafter, restoration thereof was applied through CRP No. 117 of 2019 in terms of Sec. 126 Cr.P.C. followed by a request to condone the delay in terms of Sec. 5 of the Limitation Act later to which the petitioner was summoned and on his appearance, he filed an objection by claiming that a proceeding under Sec. 125 Cr.P.C. cannot be restored to file and the court as is not vested with any inherent power has become functus officio after passing of the final order, hence, it cannot recall or review the dismissal order in view of the bar envisaged in Sec. 362 Cr.P.C. However, the learned Judge, Family Court, Cuttack entertained the application for restoration and proceeded to hold that the question of limitation to be decided at a later stage on receiving evidence since it is a mixed question of fact and law. It is the said decision of the Family Court vide order 7/6/2022 is under challenge at the behest of the petitioner.

(3.) Heard Mr. Devashis Panda, learned counsel for the petitioner and Ms. Anima Ku. Dei, learned counsel for the opposite parties.