KASINATH PANDA Vs. PADAMBATI DEBI

JUDGEMENT

(1.) THIS is a petition by a Hindu husband against ' an order dated 17-11953, of Shri N. V. R. Murty, First Class Magistrate of Dasapalla directing the sale of the petitioner's paddy in enforcement of an order for payment of maintenance to his Wife, passed against him by another Magistrate.

(2.) THE admitted facts are as follows: The original order under Section 488 (1), Criminal P. C. directing the petitioner to pay a, monthly maintenance of Rs. 30/- to his wife (opposite party) was passed by Shri P. Rama Rao, Magistrate, First Class, Dasapalla, on 6-5-1953. The opposite party took steps for enforcement of that order, but sub sequently on 20-8-1953 did not press for the same saying that she was reconciled with her husband. From 20-8-1953 the two began to live together. But on 14-6-1954 the opposite party left her husband for the second time and went away to her father's place. Then, on 30-7-1954, she applied to the Court for realisation of the arrear of maintenance due to her, from the date on which she left her husband for the second time and began to live separately. Notice was issued to the petitioner under Sub-section (3) of Section 488, Criminal P. C. , and he objected to the enforcement of the order on the ground that his wife was living in adultery. The learned Magistrate rejected his petition on the ground that while taking steps under sub-section (3) of Section 488 to enforce an order of maintenance he had no jurisdiction to enquire into those matters. He further pointed out that if the allegations of the petitioner were true it was open to him to apply under Sub-section (5) of Section 488 for cancellation of the order for maintenance. Thereupon, on 18-5-1955 the petitioner filed a separate application under Sub-section (5) of Section 488, Criminal P. C, for cancellation of the order of maintenance and also asked for an adjournment of the proceeding for enforcement of the order for payment of maintenance. The learned Magistrate refused to grant him adjournment and directed the issue of a distress warrant for the realisation of arrear of maintenance due. There was some delay due to the petitioner taking up the matter to the Sessions Judge. The petitioner having been unsuccessful there, has come up to this Court in revision.

(3.) THE main contention of Mr. H. Mohapatra on behalf of the petitioner is that when the opposite party settled her dispute with the petitioner and began to live with him with effect from 20-8-1953, the previous order of the Magistrate dated 6-5-1953 directing payment of maintenance at Rs. 30/- per month ceased to be operative and that it would not revive when she again left her husband on 14-6-1954. Hence he urged that the order of the Magistrate, dated 17-1-1956, directing the sale of the attached paddy was without jurisdiction.