JUDGMENT 1. - These are two references made by the learned Additional Sessions Judge, Banswara, with a recommendation that both the orders of the learned Sub-Divisional Magistrate, Kushalgarh, dated 21st March and 27th March, 1973, may be set aside. As both these orders were passed in a proceeding under S. 488 Cr. P.C. by the learned Sub-Divisional Magistrate, Kushalgarh, they are disposed of together by single order. It will not be out of place to mention that the learned Sub-Divisional Magistrate, Kushalgarh, by his order dated 21st March, 1973 refused to set aside the ex-parte order of maintenance passed on 16th September, 1972, on the ground that no good cause was shown by Mahipal for his non-appearance in the court on 15th September, 1972, on which date the evidence of his wife Mst. Laxmi Bai was recorded. The other impugned order of the learned Sub-divisional Magistrate, Kushalgarh, dated 27th March, 1973, related to issue of a warrant of attachment of moveable & immovable properties of Mahipal for levying the amount of arrears of maintenance to the tune of Rs. 770/-. 2. The short facts giving rise to these references may be stated as follows: Smt. Laxmi Bai is the wife of Mahipal. She presented an application on 8th February, 1972, under S. 488, Criminal Procedure Code against her husband for grant of maintenance on the ground that her husband had neglected and refused to maintain her and that she was unable to maintain herself. Upon receipt of this application, the learned Sub-divisional Magistrate called upon the husband to appear in his court to answer the coarge levelled against him by his wife. It appears from the record that Mahipal appeared in court on 25th April, 1972, in response to the summons served upon him. He however, sought an adjournment for filing a written reply on 25th April, and 5th May, 1972, on the ground of his illness. The learned Sub-Divisional Magistrate granted the adjournments and directed Mahipal to file his written reply on 2nd June, 1972. Mahipal again sought an adjournment on 2nd June, 1972, but the court did not adjourn the case for filling a reply. Mst. Laxmi Bai was ordered to adduce her evidence on 12th July, 1972. Her witness could not be examined on 12th July,1972 as the case was adjourned at the request of her husband upon payment of costs of Rs. 25/-. Mst. Laxmi Bai was ordered to adduce her evidence on 12th July, 1972. Her witness could not be examined on 12th July,1972 as the case was adjourned at the request of her husband upon payment of costs of Rs. 25/-. The next date fixed in the case was 5th September, 1972, but on that date Mst. Laxmi Bai and her witnesses could not appear to give evidence in the case. The learned Sub-divisional Magistrate adjourned the case to 15th September, 1972 on the request of learned counsel appearing on behalf of Mst. Laxmi Bai. On 15th September, 1972, Mst. Laxmi Bai brought her witnesses in the court but her Magistrate was satisfied that Mahipal neglected to attend the court. He, therefore, recorded the statements of Mst. Laxmi Bai and her witnesses on that date in the absence of Mahipal and his counsel. On the next date, i.e. 16th September, 1972, he finally decided the case in favour of Mst. Laxmi Bai and allowed her maintenance at the rate of Rs. 140/-, per month. Later on, on 11th October, 1972 Mahipal made an application to the learned Sub Divisional Magistrate that the ex-parte order of maintenance passed against him on 16th September, 1972, may be set aside, because he fell ill on 15th September, 1972 and could not attend the court on account of illness. In support of his application Mahipal put in his own affidavit and a medical certificate. On 3rd November, 1972 the learned counsel for Mst. Laxmi Bai expressed his desire to cross-examine the husband upon his affidavit. The record shows that there was no cross-examination. The learned Sub-divisional Magistrate rejected the application of the husband for setting aside the ex-parte order of maintenance on 21st March, 1973. Thereafter on 27th March, 1973, he issued a warrant of attachment of the properties of Mahipal for levying the amount of arrears of maintenance. 3. The record shows that there was no cross-examination. The learned Sub-divisional Magistrate rejected the application of the husband for setting aside the ex-parte order of maintenance on 21st March, 1973. Thereafter on 27th March, 1973, he issued a warrant of attachment of the properties of Mahipal for levying the amount of arrears of maintenance. 3. Aggrieved by these orders dated 21st March and 27th March,1973, Mahipal filed two revision petitions Nos 5 and 7 of 1973 before the learned Additional Sessions Judge, Banswara, who after hearing the revision-petitions, was of the view that Mahipal had shown good cause for his non-appearance in court on 15th September, 1972 and, therefore, the ex-parte order of maintenance passed against him by the learned Sub Divisional Magistrate was liable to be set aside and that the order issuing a warrant of attachment for leying the amount of arrears of maintenance being passed without giving any notice to the husband was contrary to law. he accordingly made these two references. 4. I have carefully gone through the record and heard the arguments advanced by Mr. N.N.Mathur for Mahipal. Nobody has appeared for Mst. Laxmi Bai. For the reasons given out by the learned Additional Sessions Judge in the order of reference, the two impugned orders passed by the learned Sub Divisional Magistrate, Kushalgarh, on 21st and 27th March, 1973, are liable to be set aside. Sub-Section (6) of section 488, Cr. P.C. enjoins upon a Magistrate to take all evidence in the presence of the husband or the father, as the case may be, or , when he is exempted from personal attendance in the presence of his pleader. The proviso appended to sub-section (6), however, empowers, the Magistrate to proceed to hear and determine the case ex-parte, if he is satisfied that the husband or the father has wilfully neglected to attend the court. The proviso further empowers the Magistrate to set aside the ex-parte order for good cause shown on application made by the husband or the father within three months from the date thereof. In the present case the application for setting aside the ex parte order was made by Mahipal husband within three months from the date of ex-parte order. The proviso further empowers the Magistrate to set aside the ex-parte order for good cause shown on application made by the husband or the father within three months from the date thereof. In the present case the application for setting aside the ex parte order was made by Mahipal husband within three months from the date of ex-parte order. The good cause shown by Mahipal was that he fell ill on the date of hearing i.e. on 15th September, 1972 and on account of his illness he could not attend the court. he filed along with his application for setting aside the ex-parte order his own affidavit and a medical certificate. Mst. Laxmi Bai could not file a counter affidavit to controvert the fact of illness alleged in the affidavit and the medical certificate submitted by her husband. She did not cross-examine her husband upon his affidavit. There is no material on the record to show that the affidavit sworn in by Mahipal was false or that the Medical Practitioner, had issued a false medical certificate about his illness on 15th September, 1972. Consequently, I agree with the learned Additional Sessions Judge that good cause had been shown by Mahipal for his failure to attend the court on 15th September, 1972. 5. The order relating to the issue of warrant of attachment for levying arrears of maintenance also is illegal, because no notice to show cause why a warrant of attachment should not be issued for the non-compliance of the order of maintenance was given to Mahipal before the passing of the impugned order of execution by way of warrant of attachment of his properties. Although sub-section (3) of S. 488, Cr. P.C. does not in terms require that such notice to show cause should be given to the husband before passing an order for execution, yet the opening words in sub-section (3) of S. 488, Cr. P.C. that 'if any person so ordered fails without sufficient cause to comply with the order,' clearly indicate that the requirement that such notice should be issued is implicit in sub-sec. P.C. that 'if any person so ordered fails without sufficient cause to comply with the order,' clearly indicate that the requirement that such notice should be issued is implicit in sub-sec. (3), because if such notice is issued, the husband may come before the court and may establish sufficient cause for non compliance with the order of maintenance and because in case the husband is able to show sufficient cause for non-compliance, it will not be permissible for the Magistrate to issue a warrant for levying the amount. Consequently, I agree with the learned Additional Sessions Judge that the order of the learned Sub-Divisional Magistrate relating to issue of warrant without first issuing show cause notice to the husband is improper and contrary to law. 6. For the foregoing reasons, the two references are accepted and the orders of the learned Sub-Divisional Magistrate, Khushalgarh, dated 21st March, and 27th March, 1973, are set aside and he is directed to set aside the ex-parte order of maintenance and to take evidence in the presence of Mahipal or his counsel as envisaged in sub-section (6) of S. 488 Cr. P.C. and then dispose of the case according to law in the light of the above observations. *******