JUDGMENT : P.K. Banerji, J. 1. An application under Section 488 of the Code of Criminal Procedure hereafter called as the Code was filed by opposite party no. 1 Jasoda Devi in the Court of the Sub-divisional Magistrate, Sitamarhi on 29-9-1965 for determination of alimony for herself and for her daughter. After due notice and after cause wag shown by the petitioner the parties entered into evidence in support of their respective cases; two witnesses were examined on behalf of Jasoda Devi to say that she is the legally married wife of petitioner Ramchandra Sah and four witnesses were examined on behalf of Ramchandra Sah to rebut the allegation of Jasoda Devi. On a scrutiny of the evidence recorded in the case the Court came to the finding that Jasoda Devi Was not married to Ramchandra Sah. Her prayer for alimony was therefore rejected by the court on 27-12-1968 and the JUDGMENT : is Annexure I. Subsequently, on 30-5-1967, Jasoda Devi, opposite party filed a petition against Ramchandra Sah and five others alleging therein that Ramchandra Sah, her husband, was going to enter into a second marriage with the daughter of Kishori Sah and the prayer was for necessary action against Ramchandra Sah preventing him to enter into the second marriage. A second petition was filed on 16-6-1967, alleging that Ramchandra Sah was going to marry the daughter of Kishori Sah on 18-6-1967. The Sub-divisional Magistrate directed Shri M.M. Mitra, Magistrate, to enquire into the allegation and to submit his report. A report was accordingly submitted supporting the allegation on the second marriage and also the fact that Jasoda Devi is the legally married wife of Ramchandra Sah. On 26-7-1967, the case came on transfer to the file of Shri M. Salauddin, Magistrate at Sitamarhi for trial. It appears that the present petitioner Ramchandra Sah had moved this Court (Criminal Revision No. 1422 of 1967) and it was heard and dismissed on 7-9-1967 with the following observation: 7-9-67. Heard Mr. Shree Nath Singh for the petitioners. Amongst others, his grievance is that the learned Magistrate should not have proceeded with the case in view of the fact that the matter had been earlier determined in 1966 and it was held in a case brought by the opposite party for maintenance that she was not entitled to it as she was not married to petitioner no. 1. Amongst others, his grievance is that the learned Magistrate should not have proceeded with the case in view of the fact that the matter had been earlier determined in 1966 and it was held in a case brought by the opposite party for maintenance that she was not entitled to it as she was not married to petitioner no. 1. I have no doubt that this matter and other matters which he has raised in the application will be considered by the learned Magistrate. With these observations the application is dismissed. Thereafter Jasoda Devi adduced evidence in support of her case before Shri M. Salauddin to the effect that she is the legally married wife of Ramchandra Sah and she has a daughter named Bachi born of this marriage. Counter evidence was adduced on both the issues. The Magistrate Sri M. Salauddin came to the findings that Jasoda Devi is the married wife of Ramchandra Sah and the girl Bachi is born of this marriage union and he has directed Ramchandra Sah to pay Rs. 55/- (Rs. 30/- for wife and Rs. 25/- for the daughter) towards the maintenance with effect from 16-6-1967 when the petitioner there filed her application seeking relief before the Sub-divisional Magistrate. 2. Ramchandra Sah moved the Sessions Judge, Muzaffarpur through a revision application. It was heard by the learned Additional Sessions Judge of the place and he dismissed the application on 16-2-1970. The present application is directed against the ORDER :passed by Sri M. Salauddin, Magistrate at Sitamarhi as also against the ORDER :passed by the Additional Sessions Judge of Muzaffarpur in Criminal Revision No. 90 of 1968 dismissing the petitioner's application. 3. Limitation expired in 1958 and consequently a separate application was filed under Section 5 of the Limitation Act on the same day when the present application was filed and it was stated therein that due to the wrong advice of local lawyer the petitioner went up in revision before the Sessions Judge, Muzaffarpur within 30 days of the JUDGMENT : passed by the trial court and the petitioner came up before this Court within 90 days from the date of the JUDGMENT : and ORDER :passed by the Additional Sessions Judge. 4. Mr. Md. Khalil, appearing for the petitioner Ramchandra Sah submitted that the ORDER :of the learned Magistrate Mr. M. Salauddin dated 30.3.1968 directing the petitioner to pay Rs. 4. Mr. Md. Khalil, appearing for the petitioner Ramchandra Sah submitted that the ORDER :of the learned Magistrate Mr. M. Salauddin dated 30.3.1968 directing the petitioner to pay Rs. 54/- per month to Jasoda Devi and her daughter based on the finding that Jasoda Devi is the legally married wife of Ramchandra Sah and Bachi is their daughter born of this marriage union is illegal, without jurisdiction and void as these issues were earlier decided in a contested proceeding under Section 488 Cr.P.C. between the same parties by Shri B. Singh on 27.12.1966 and he held on a scrutiny of the evidence adduced in that proceeding that Jasoda Devi is not the married wife of Ramchandra Sah. Learned counsel submitted that the same issue cannot be reagitated in a second proceeding between the parties, being hit by rule of issue estoppel. Reliance was placed by learned counsel in the case of (1) Manipur Administration V. Thokchom Bira Singh (A.I.R. 1965 SC 87). It was also submitted by him that in absence of any fresh petition filed under Section 488 of the Code the court below had no jurisdiction to convert the proceeding into one under Section 488 of the Code and grant the alimony that has been granted in the instant case and the amount of alimony granted is excessive and is not based on any evidence regarding the means of the petitioner. 5. Mr. Jugal Kishore Prasad, learned counsel, appearing for the opposite parties Jasoda Devi and her daughter Bachi, submitted at the outset that the present application is completely barred by time and although this Court at the time of admitting the application has condoned the delay, it was evidently condoned for the time being and in the absence of the opposite parties and the latter can in law reagitate the point; his further contention has been that wrong advice of a lawyer is no ground to condone the delay under Section 5 of the Limitation Act. The first submission of learned counsel finds adequate support from a decision of the Judicial Committee in the case of (2) Krishnasami Pandikondar V. Ramasami Chettiar and others (Indian Appeals Vol. XLV. 25). In this case at the time of admission of the application Sankaran Nair, J., sitting as a single Judge made an ORDER :in these terms "Delay excused in the circumstances and appeal admitted". XLV. 25). In this case at the time of admission of the application Sankaran Nair, J., sitting as a single Judge made an ORDER :in these terms "Delay excused in the circumstances and appeal admitted". The appeal thus admitted came up for hearing before a Division Bench of the Madras High Court and at the outset it was objected that the appeal was out of time and so incompetent. The Court accepted the view and dismissed the appeal. A subsequent application for review failed. It was argued before the Judicial Committee that the admission of appeal by Sankaran Nair, J. was final and the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. Their Lordships of the Judicial Committee however held that this ORDER :of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent but without notice to him and yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that, to preclude him from questioning its propriety would amount to denial of justice. Their Lordships continued to say that it must therefore, in common fairness be regarded as tacit term of an ORDER :like the present that, though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected. 6. It was next urged by Mr. Prasad that the impugned ORDER :was passed by Mr. M. Salauddin on 30.3.1968, but the present application was filed beyond the Statutory period of limitation on 11.5.1970 and it was admitted by this Court on 21.5.1970. It however appears that the petitioner Ramchandra Sah went up in criminal revision before the Sessions Judge of Muzaffarpur within 30 days of that ORDER :but his revision petition was dismissed on merits by the Additional Sessions Judge on 16.2.1970. The present application was of course filed within 90 days from the date of the ORDER :passed by the learned Additional Sessions Judge. It is submitted that the application was not filed, within 90 days from the date of the ORDER :of the learned Magistrate and on this ground the application is barred by time under Article 131 of the Limitation Act which came into force on the 1st day of January, 1964. It is submitted that the application was not filed, within 90 days from the date of the ORDER :of the learned Magistrate and on this ground the application is barred by time under Article 131 of the Limitation Act which came into force on the 1st day of January, 1964. It lays down that the period of limitation to any court for the exercise of its powers of revision under the Code is 90 days from the date of the decree ORDER :or sentence sought to be revised. The ORDER :sought to be revised as contemplated by Article 131 of the Limitation Act being the ORDER :of the Magistrate and not the ORDER :of the Sessions Judge the application in revision against that ORDER :should have been filed before the High Court within 90 days from the date of the Magistrate's ORDER :excluding of course the time taken in obtaining relevant copies. Mr. Md. Khalil submitted that the delay was due to the circumstances which were beyond the control of his client. As advised by his counsel in the lower court, the revision application was filed before the Sessions Judge and until the matter was heard and decided by the learned Additional Sessions Judge, this petitioner could not come up before this Court. It was submitted that there was no want of diligence on the part of the petitioner in pursuing the matter in Higher Court and he has come within 90 days from the date of the ORDER :passed by the Additional Sessions Judge. Learned counsel for the opposite party submitted however, as has been noticed, that wrong advice by a lawyer does not entitle a litigant to claim benefit under Section 5 of the Limitation Act. Of course as a rule it must be held that negligence of a party's agent is, in law the negligence of the party himself and the party's lawyer stands on the same footing as the party's agent and on principle his negligence ought to have the same consequence but then the view taken in some cases has been that if the mistake of the lawyer is one that can be condoned under the section and the party has acted on his advice the party should not be prevented from relying upon it for claiming the indulgence under the Section. Wrong legal advice has been held to be a sufficient cause when the advice is given bonafide and the party has acted with care and attention in relying and acting on such advice. The fundamental rule which seems to be well settled as the true rule of guidance for the exercise of the discretion under the section is to see whether the party claiming indulgence has been reasonably diligent in prosecuting his appeal or application. I may refer in this connection to a Bench decision of this Court in the case of (3) Sakhichand and another V. Ishwar Dayal Sah and others (A.I.R. 1967 Pat 351) in which it was held that even though the statutory period of limitation in respect of an application in revision has expired, the High Court may in exceptional cases interfere with the Magistrate's ORDER :in the exercise of its wide power under Section 439 of the Code. It was further held in this case that until the position regarding the pendency of the revision application before the Sessions Judges improves so that such application may be disposed quickly by them the party may at his option come to this Court direct under Section 439 read with Section 435 of the Code. But whenever a party invokes the power of this Court under Section 439 of the Code after the expiry of the statutory period of limitation on account of the pendency of his application in revision before the Sessions Judge, the power to condone , the delay under Section 5 of the Limitation Act should be liberally exercised provided that the applicant had been diligently and promptly prosecuting the case in the court below on account of the practice of this Court that the party must go in the first instance to the Sessions Judge or the District Magistrate as the case may be. In the case of (4) Ramlal and others V. Rewa Coal Fields Ltd. (A.I.R. 1962 SC 361) their Lordships held as follows:- In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words when the period of limitation prescribed has expired the decree-holder has obtained a benefit under, the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in ORDER :that judicial power and discretion in that behalf should be exercised to advance substantial justice.... A court cannot lose sight of the fact that a litigant being ordinarily ignorant of the intricacies of law and procedure and has to surrender himself entirely to the expert advice of his counsel. In the instant case it appears that the lawyer of the petitioner engaged in the lower court might not have been aware of Article 131 of the New Limitation Act which came into operation from the 1st of January, 1964 with the result that he wrongly advised his client to move the Sessions Court in revision according to the earlier practice prevailing. The petitioner did not show any lack of diligence in pursuing the matter in the Higher Courts and due to wrong advice of the lawyer, a circumstance which was beyond the control of the petitioner the delay in presentation of the revision of petition in this Court was caused and this delay should be condoned more particularly because the throwing out of his application on the ground of limitation in view of the peculiar facts of the case which I shall presently discuss would be against the exercise of the discretion of the court to advance substantial justice. 7. As has been noticed above, an application under Section 488 of the Code was filed by opposite party no. 7. As has been noticed above, an application under Section 488 of the Code was filed by opposite party no. 1 Jasoda Devi on 29-9-1965 in the Court of the Sub-divisional Magistrate, Sitamarhi for determination of alimony for herself and her daughter and the parties entered into evidence and on a scrutiny of the same the learned Magistrate Shri B. Singh on 27-12-1965 came to the finding that opposite party Jasoda Devi was not married to Ramchandra Sah and her prayer for alimony was thus rejected (vide Annexure 1). The issue in that case directly being whether Jasoda is a married wife of petitioner Ramchandra Sah and Bachi, opposite party no. 2 is his daughter born of this marriage and both the issues having been decided against the opposite parties, a subsequent application relating to the same issues could not be permissible in law. Before I elaborate this aspect of the matter I may point out that it was conceded that a second application for the same relief could be filed only when new facts were alleged and it was further conceded that no new facts for grant of alimony were alleged in the subsequent petition filed by Jasoda Devi before the Sub-divisional Magistrate of Sitamarhi, on the basis of which the impugned ORDER :in the case was passed. Mr. J.K. Prasad submitted however that it is a case of a destitute woman and she could not come up before this Court against the earlier decision by which it was wrongly held that she was not the legally married wife of petitioner Ramchandra Sah. She filed a second petition for the same relief before the Sub-divisional Magistrate and upon evidence the proceeding was decided in favour of Jasoda and this Court in its revisional jurisdiction should not undo the justice done to her by Sri M. Salauddin and that too on an application which is long barred by time. The submission of Mr. Prasad appears to be based more on sentimental than on legal grounds and I am not inclined to accept this submission. 8. It will appear from the impugned ORDER :of Mr. The submission of Mr. Prasad appears to be based more on sentimental than on legal grounds and I am not inclined to accept this submission. 8. It will appear from the impugned ORDER :of Mr. M. Salauddin dated 30-3-1968 that the case of Jasoda Devi petitioner was that she was married with opposite party Ramchandra Sah 12 to 15 years ago and a daughter named Bachi was born to them about 9 to 10 years ago and they lived as husband and wife but since three years Ramchandra Sah developed illicit connection with another woman and he chastised Jasoda Devi, assaulted her and drove her out from his house and since then she was living on the dint of her own labour by working for others who gave her employment. She stated further that she had brought a case under Section 488 Criminal Procedure Code which was dismissed by B. Singh, on 27-12-1966 on the finding that she was not the married wife of Ramchandra Sah and she filed another petition on 16-6-1967 before the Sub-divisional Officer that her petition was dismissed for insufficient evidence as she could not prove her case that she was the legally married wife of Ramchandra Sah who being thus emboldened was going to marry another woman at village Rain Kharka and he should be restrained from doing so and that he should be ORDER :ed to maintain Jasoda and her daughter. The Sub-divisional Magistrate Sitamarhi directed Mr. Mitra a Magistrate to hold local enquiry in the matter and on the basis of the report of the Magistrate aforesaid that Ramchandra was managing his Barat party on that particular afternoon (18-6-1967) and that Jasoda was the married wife of Ramchandra Sah, the learned Sub-divisional Magistrate transferred the enquiry and the proceeding to the Court of Shri M. Salauddin. Four witnesses were examined before him on behalf of Jasoda Devi. The present petitioner Ramchandra Sah did not examine himself in that proceeding but four witnesses were examined there on his behalf and Mr. Salauddin, Magistrate came to the finding that Jasoda is the married wife of Ramchandra and Bachi is an issue born of this marriage. Four witnesses were examined before him on behalf of Jasoda Devi. The present petitioner Ramchandra Sah did not examine himself in that proceeding but four witnesses were examined there on his behalf and Mr. Salauddin, Magistrate came to the finding that Jasoda is the married wife of Ramchandra and Bachi is an issue born of this marriage. He negatived the contention of Ramchandra that the application of Jasoda which was being heard by him was not filed for grant of maintenance but only to stop the second marriage of Ramchandra Sah holding as follows:-- ........No doubt she sought relief restraining her husband from entering into second marriage and that she should be given under the care of Ramchandra but since he did not refrain from second marriage and did not accept the petitioner and his daughter in his care obviously her claim stands for maintenance and her petition stands converted into maintenance petition which position also stands admitted by the defence in the examination in chief of the D. Ws. who have stated that this maintenance suit has been instituted by Yasoda Devi at the instance of Rameshwar Sah. 9. Apart from the illegal and unwarranted conversion of a petition praying to restrain the second marriage of Ramchandra Sao into one under Section 488 of the Code and granting alimony to Jasoda Devi without her specific prayer to that effect and fixing the alimony practically on no evidence at all, the submission of learned counsel as has been noticed earlier is that once the issues as to whether opposite party no. 1 and opposite party no. 2 are the wife and daughter respectively of the petitioner have been decided by a competent court of law and have become final the same issues cannot be reagitated again in a second proceeding between the parties and reliance was placed by learned counsel in the case of (5) Pritam Singh V. State of Punjab (A.I.R. 1956 SC 415). 2 are the wife and daughter respectively of the petitioner have been decided by a competent court of law and have become final the same issues cannot be reagitated again in a second proceeding between the parties and reliance was placed by learned counsel in the case of (5) Pritam Singh V. State of Punjab (A.I.R. 1956 SC 415). In Pritam Singh's case the question raised for decision was whether, where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution or not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). Their Lordships referred to the following observations of Lord Mae Dermott at page 479 in (6) Sambasivam V. Public Prosecutor Federal of Malaya (1950 A.C. 458) relied upon by the Madras High Court in the case before their Lordships. "The effect of verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res-judicata pro veritate accipitur' no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial." Their Lordships of the Supreme Court observed thus: We are of the opinion that the High Court was right in rejecting the evidence regarding recovery of Ext. P. 56 against Pritam Singh Lohara....... 10. P. 56 against Pritam Singh Lohara....... 10. In the case of (1) Manipur Administration V. Thokchom Bira Singh (A.I.R. 1965 SC 87) the question was reconsidered and their Lordships addressed themselves to the question as to whether what is termed "Issue Estoppel" which has been held in Pritam Singh's case to be applicable to criminal proceeding is excluded by reason of the provisions of the Criminal Procedure Code. As has been explained in this case; the rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and finding has been reached in favour of an accused such a finding would constitute an Estoppel or Res Judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). To quote a few lines from this decision: .....As we have pointed out earlier issue estoppel does not prevent the trial of any offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction.... Their Lordships also held that: Section 403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as a proper one to be adopted, we do not see any reason for discarding it. Consequently once a court of competent jurisdiction pronounced JUDGMENT : on certain issues on the basis of the evidence adduced by the parties and by lapse of time that decision becomes final and it cannot be questioned in any subsequent proceeding between the parties far less it can be raised or reviewed by a court having concurrent jurisdiction. Consequently once a court of competent jurisdiction pronounced JUDGMENT : on certain issues on the basis of the evidence adduced by the parties and by lapse of time that decision becomes final and it cannot be questioned in any subsequent proceeding between the parties far less it can be raised or reviewed by a court having concurrent jurisdiction. The findings of Shri Salauddin in the impugned ORDER :being directly contrary to the findings of Shri B. Singh, Magistrate, the impugned ORDER :of Shri Salauddin must be held to be illegal and without jurisdiction ,and it must be set aside in toto as also the ORDER :of the Additional Sessions Judge dated 16-2-1970. In this view of the matter the application is allowed and the ORDER :s aforesaid of the courts below are both set aside. Application allowed