JUDGMENT 1. THESE three Rules are heard together as they arise out of the same order. 2. THE petitioner is the husband. The opposite party is the wife. They were married on June 5, 1963. On March 15, 1965 the opposite party filed an application under section 488 of the code of Criminal Procedure for maintenance against the petitioner. The petitioner appeared but ultimately did not turn up and an exparte order for maintenance was made against him on June 29, 1965 directing him to pay a maintenance of Rs. 90/- per month to the opposite party with effect from the date of the order. On November 9, 1967, the opposite party filed an application under section 488 (3) of the Code for enforcement of the order for maintenance for the period from October 29, 1965 to October 29, 1966. Subsequently, on January 9, 1868 the opposite party filed a further application for enforcement of the order for maintenance for the period from October 30, 1966 to November 30, 1967 and lastly, on September, 8, 1969 the opposite party filed an application for enforcement of the order for maintenance for the period from December 1, 1967 to December 31, 1968. The petitioner filed objections to the opposite party's applications for enforcement of the order for maintenance. Further, the petitioner filed an application on June 18, 1970 under section 489 (2) of the Code for cancellation of the order for maintenance. The opposite party resisted this application. The learned Magistrate rejected this application and directed enforcement of the order for maintenance for the periods for which the opposite party had applied for such enforcement. The petitioner then obtained these Rules. 3. THE petitioner alleges that after their marriage he was residing with the opposite party at Kharsia, tahashil and district Raigarh, in Madhya Pradesh. The order for maintenance was made by a Magistrate at Tamluk. On July 14, 1968, the petitioner filed a suit against the opposite party before the Second civil Judge, Class II, Raigarh, for a declaration that the exparte order for maintenance made by the Magistrate at tamluk was inoperative and for a mandatory injunction on the opposite party restraining her from enforcing that order. This suit was decreed exparte on December 4, 1968. This suit was decreed exparte on December 4, 1968. Further, the petitioner filed a Civil Suit, Civil Suit No. 27a of 1969 before the Court of the second Additional District Judge, Raigarh, against the opposite party for a decree for restitution of conjugal rights under section 9 of the Hindu Marriage act. This suit was decreed exparte on February 7, 1970. 4. MR. Bhose submits that in view of these two decrees of the Civil Courts the order for maintenance should be cancelled. Let us first deal with the decree passed by the Second Civil judge, Class II, Raigarh, declaring the exparte order for maintenance inoperative. The order for maintenance was sought to be executed at Raigarh and following the Allahabad High Court's decision in (1) Gauri Devi v. Bishwanath Banerjee, A. I. R. 1970 All. 185, it may be said that the Civil Court at Raigarh has jurisdiction to entertain a suit for setting aside the order for maintenance made by the Magistrate at tamluk. But then I find that the allegation made by the petitioner in that suit is that the Magistrate at Tamluk made the order for maintenance without jurisdiction and the Civil Court found that the order was made without jurisdiction. There was no allegation that the order for maintenance was obtained by fraud or that fraud was played upon the Court and the suit was not for setting aside the order of the Magistrate at tamluk on the ground of fraud. Mr. Bhose refers to the Supreme Court decision in (2) Firm of Illuri Subbayya chetty and Sons v. State of Andhra pradesh, A. I. R. 1964 S. C. 322, where the supreme Court has said that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. Certainly if the order is sought to be set aside on the ground of fraud the Civil court has jurisdiction but then the Civil court cannot be said to have jurisdiction to set aside an order on the ground that the Magistrate made the order without jurisdiction. There are appropriate provisions in the Code of Criminal Procedure for determination of such questions by the superior Courts. There are appropriate provisions in the Code of Criminal Procedure for determination of such questions by the superior Courts. So the Civil Court cannot set aside the order for maintenance made by a magistrate only on the ground that the order was made without jurisdiction, in the sense that the Magistrate had no territorial jurisdiction. But as I have said and the aforesaid Allahabad High court decision has said, the Civil Court is competent to set aside the order for maintenance made by a Magistrate on the ground of fraud. But here there is no allegation of fraud and the order for maintenance has not been made inoperative on the ground of fraud. Mr. Bhose then argues that the decree for restitution of conjugal rights passed by the Additional District Judge, raigarh, should be sufficient ground for cancellation of the order. He refers to the decision of this Court in (3) Tarak Nath Dhar v. Sm. Sneharani Dhar 52 c. W. N. 166, where Lodge, J. held that the effect of a decree for restitution of conjugal rights against the wife is that the wife is refusing without sufficient reason to live with the husband and in such circumstances a previous order for maintenance should be cancelled under section 489 (2) of the Code. But here in this case there is no evidence on the part of the petitioner to show that after the decree for restitution of conjugal rights was obtained the petitioner had invited the opposite party to live with him of that the opposite party had refused to live with him. The mere fact that a decree for restitution of conjugal rights was obtained against the wife cannot be said to prove either that the husband is willing to keep the wife in his house with the dignity that she deserves or that the wife has refused to live with him without sufficient reason. This will be more so in the case of an exparte decree for restitution of conjugal rights like the present one. Further this Court in a subsequent decision has held that simply because the husband has obtained a decree for restitution of conjugal rights the Magistrate was not bound to surrender his own discretion and cancel the order for maintenance under section 489 (2) of the Code. (Vide (4) Kunti Bala Dassi v. Nabin chandra Das, 94 C. L. J. 119. Further this Court in a subsequent decision has held that simply because the husband has obtained a decree for restitution of conjugal rights the Magistrate was not bound to surrender his own discretion and cancel the order for maintenance under section 489 (2) of the Code. (Vide (4) Kunti Bala Dassi v. Nabin chandra Das, 94 C. L. J. 119. This view also finds support in the Division Bench decision of the Bombay High Court in (5) Fakruddin Shamsuddin Saiyed v. Bai Jenab, A. I. R. 1944 Bombay 11, where it has been also held that the magistrate is not bound to cancel the order for maintenance made in favour of the wife because the Civil Court has made an order for restitution of conjugal rights in favour of the husband. The Magistrate is bound to satisfy himself that the husband is bonafide prepared to give effect to the order of the Civil Court, or, in other words, that he is prepared to offer the wife a home, which she ought to accept. The mere fact that the Civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion. Hers, as I have said, the petitioner has adduced no evidence to show that he was prepared to do what was necessary to do to keep the wife with him or that the wife had refused to accept his invitation to live with him in honour. So, on the materials on record I think that the learned Magistrate was justified in refusing to cancel the order for maintenance. I hold therefore that the petitioner's application under section 489 (2) of the Code has been rightly rejected. The Rules are therefore discharged. 5. MR. Bhose has pointed out that the claim in the case cut of which criminal Revision Case No. 410 arises is barred by limitation. Similarly parts of the claim in the cases out of which criminal Revision Case Nos. 408 and 409 arise are also barred by limitation. This matter has not been considered by the learned Magistrate. But it should be remembered that these objections were not taken before him. But now that the records are before me, for ends of justice I should make appropriate orders in this regard. 6. 408 and 409 arise are also barred by limitation. This matter has not been considered by the learned Magistrate. But it should be remembered that these objections were not taken before him. But now that the records are before me, for ends of justice I should make appropriate orders in this regard. 6. THE whole claim made in the opposite party's application for enforcement of the order for maintenance for the period from October 29, 1965 to October 29, 1966 is barred by limitation and is dismissed. The claim from October 30, 1966 to the end of January 1967 in the application for enforcement of maintenance order for October 30, 1966 to November 30, 1967 is barred by limitation. The learned Magistrate may enforce the claim only for the period from February 1967 to November 30, 1967. Similarly, the claim for the period from December 1, 1967 to the end of April 1968 in respect of the application for enforcement of the order for maintenance for December 1, 1967 to December 31, 1968 is barred by limitation and the Magistrate may enforce the claim for maintenance for the period from may 1968 to December 31, 1968. Let the records be sent down is once. The learned Magistrate will now proceed in accordance with law in terms of the aforesaid directions.