SIBA CHARAN PRADHAN Vs. BINA PRADHAN & ANR

JUDGEMENT

(1.) This is an application under Section 19 of the Family Court Act read with Section 401 of the Code of Criminal Procedure (Cr.P.C., in short) assailing the order dated 27.11.2017 passed by the learned Judge, Family Court, Nayagarh in the Criminal Misc. Case No.281 of 2017 rejecting an application filed by the present petitioner to set-aside the ex-parte order of maintenance passed against the petitioner on 29.11.2003 in C.M.C. No.62 of 2003 by the learned S.D.J.M.,Nayagarh.

(2.) The application to set-aside the ex-parte order was filed under Section 126(2) of the Cr.P.C. along with an application under Section 5 of the Limitation Act to condone the delay in filing such application. The learned trial court has rejected the application solely on the ground that the petitioner was set ex-parte on his refusal to receive the notice and the application to set-aside the ex-parte order was filed after about 13 years 11 months of the ex-parte order, while Section 126(2) of the Cr.P.C. provides that such an application should be made within three months from the date of order.

(3.) It is submitted on behalf of the petitioner that the opposite party-wife filed the application under Section 125, Cr.P.C. before the learned S.D.J.M.,Nayagarh vide C.M.C. No.62 of 2003. In the said proceeding, notice was issued to the present petitioner and it was held sufficient since it was allegedly refused by him and notice was served by way of affixture by the concerned Process Server obtaining signatures of two witnesses. Simply relying on that the present petitioner as opposite party was ex-parte and taking up ex-parte hearing the learned S.D.J.M. passed the ex-parte order on 29.11.2003 directing the petitioner to pay monthly maintenance of Rs.1500/-.