( 1 ) THIS revision petition is directed against the order of the JMFC Chincholi wherein he nas issued a levy warrant for recovery of Rs. 6,200 from the petitioner said to be due from him for maintenance. ( 2 ) THE facts leading to the present petition are these: Against the present petitioner who is the husband, the two respondents, his wife and a, minor daughter, applied for maintenance, under Sec. 488i of the then crlpc and that application was tiled on 24-6-l966. The application was numbered as 15/5 of 1966 in the Court of the JMFC Chincholi. The claim was made for Rs. 100 per month as maintenance to the wife and the daughter with effect from the date of the application i. e. , 24-6-66. That application was allowed on 8-3-1967. It appears a revision was filed which went upto the High Court and was ultimately dismissed on 3-6-1969. In some interlocutory application proceeding, Rs. 500 was ordered to be deposited by the husband which he did. On 8-8-1967 the respondents filed the Execution Petition No. 15/5/67 for recovery of maintenance for 13 months with effect from 24-6-66 and in all Rs. 1,300 were claimed. It appears that the entire amount was not paid and as such a second application for execution was filed on 5-9-1969 which was numbered as 26-4-69 and the claim was made upto 24-8-69 which was of rs. 2,500 and Rs. 400 said to be the balance of the previous application. It appears, thereafter, Rs. 3,000 were deposited by the husband and that brought an end to the previous two execution applications darted 8-8-67 and 5-9-1969. ( 3 ) ON 23-12-1969 OS. 80/69 was filed by the petitioner-husband, against the respondents and in that suit, inter alia the relief claimed was that besides Rs. 3,000 which was paid as maintenance nothing was due to the respondents. Obviously, that amount was already paid by the petitioner-husband. The suit was decreed in the Court of the Munsiff on 30-8-1972. Thereafter, an appeal was filed before the Civil Judge, gulbarga; and it was allowed on 3-8-1974. In consequence thereof, the suit was dismissed. At present R. S. A. 1379 of 1974 is pending in the high Court against the judgment of the learned Civil Judge. The suit was decreed in the Court of the Munsiff on 30-8-1972. Thereafter, an appeal was filed before the Civil Judge, gulbarga; and it was allowed on 3-8-1974. In consequence thereof, the suit was dismissed. At present R. S. A. 1379 of 1974 is pending in the high Court against the judgment of the learned Civil Judge. Thereafter, on 7-11-1974, the third execution application No. 49/4 of 1974 was filed by the respondents for recovery of maintenance right from 24-8-1969 upto 23-10-74, the total being Rs. 6,200. Against this execution application , the petitioner-husband took the plea of limitation under s. 125 first proviso to sub-section (3) of the Code of Criminal Procedure of 1973 and claimed that no warrant could be issued for the recovery of any amount as the application for execution was not made to the court within a period of one year from the date on which the maintenance become due. It is undisputed that the maintenance was to be paid every month and therefore it was stated that whatever arrears fell within one year for recovery, the rest of the claims was time barred. That objection has been repelled by the learned Magistrate and the only ground sustained by him was that the third execution application was the continuance of the previous two applications. Therefore, according to the learned Magistrate, the plea of limitation was not sustainable and he has ordered for the levy warrant against the petitioner-husband. Against that order of the learned Magistrate, that the present revision is filed. ( 4 ) SRI M. . M. Jagirdar, the learned Counsel for the petitioner based his argument essentially on the interpretation of the language used in the first proviso to sub-section (3) of S. 125 and according to the learned Counsel, as long as the order of the Magistrate continued and was not cancelled or varied, the amount remained due under that order. That being so, the period of limitation was one year from the date on which the amount became due under the order of the Magistrate. Admittedly, the amount claimed was for the period between 25-8-1969 and 23-10-1974 and most of this period was beyond the prescribed period of one year. As such, the learned Counsel contended that the claim was time barred. Admittedly, the amount claimed was for the period between 25-8-1969 and 23-10-1974 and most of this period was beyond the prescribed period of one year. As such, the learned Counsel contended that the claim was time barred. The learned Counsel further argued that the learned magistrate committed a glaring error of considering the third execution application as one in continuation of the previous two execution applications. ( 5 ) SRI B. K. Ramachandra Rao, the learned Counsel for the respondents, however, emphasised that the maintenance amount could not be stated to have remained due as O. S. 80/69 filed by the petitioner was decreed on 30-8-1972 and with effect from that date only Rs. 3,000 could be claimed as maintenance. Since that amount was already paid, nothing remained due to be recovered as maintenance from the petitioner. Therefore, the order of the learned Magistrate holding the maintenance as due in fact became infruetuous on 30-8-1972 until the decree was set aside in appeal by the learned Civil Judge. The learned Counsel made a distinction between the cancellation of the order of the learned magistrate and the amount having become due or not due, in pursuance of the order of the Magistrate. However, on the basis of another provision in the Code, namely, Sec. 127 (2), Sri M. M. Jagirdar, the learned counsel for the petitioner contended that unless the Magistrate made the order for cancellation or variation of the order of maintenance, the said order remained in tact and could not be deemed cancelled or varied ipso facto when O. S. 80/69 was decreed. ( 6 ) IT is obviously correct that the reasoning of the learned Magistrate that the application was in continuation of the previous two applications could not be sustained. That was an erroneous finding. The previous two execution applications came to an end no sooner Rs. 3,000 were paid and therefore nothing remained in continuation of those two applications. Thus, the third execution application could not be considered to be in continuation of any previous application. It could stand by itself and if it was filed within the period of limitation then alone the respondents could claim maintenance. The arguments of Sri B. K. Ramachandra Rao although ingenious, yet appear to be devoid of any merit. Thus, the third execution application could not be considered to be in continuation of any previous application. It could stand by itself and if it was filed within the period of limitation then alone the respondents could claim maintenance. The arguments of Sri B. K. Ramachandra Rao although ingenious, yet appear to be devoid of any merit. The order of the learned Magistrate granting maintenance, unless the same was cancelled by another order made under Sec. 127 (2), could not be automatically cancelled. The petitioner obviously did not take that step as the decision of the Civil Court was in his favour at that stage. The Respts filed an appeal before the Civil Judge and why should they have applied to the Magistrate for cancellation or variation of the order. Perhaps they could have been well advised to file an application for the recovery of maintenance which they never did, may be because they had preferred an appeal before the Civil Judge. If it is correct to hold that the order of the learned Magistrate stood as such, and could not be deemed cancelled unless a proceeding to that effect was entertained under Sec. 127 (2), perhaps, the argument of Sri B. K. Ramachandra Rao, the learned Counsel for the respondents could not be correct when he attempted to draw a distinction by saying that the cancellation of the order of the Magistrate having not been there, nevertheless the amount ceased to be due under that order simply because O. S. 80/69 was decreed on 30-8-72. The maintenance due was part and parcel of the order regarding its payment made by the learned magistrate. The two legal conceptions could not be separated and one cannot conceive of an order of maintenance as not due, even though the order granting maintenance is in tact and is not cancelled. As long as the order granting maintenance held good, the amount shall be stated to be due under that order. That being the position, the question of limitation would assume greater importance. ( 7 ) IN that connection, the learned Counsel for the respondents, brought to his assistance S. 5 of the Limitation Act. Under that provision, perhaps, the respondents could make out a case of sufficient cause or not, for preferring an application within the prescribed time. That being the position, the question of limitation would assume greater importance. ( 7 ) IN that connection, the learned Counsel for the respondents, brought to his assistance S. 5 of the Limitation Act. Under that provision, perhaps, the respondents could make out a case of sufficient cause or not, for preferring an application within the prescribed time. But for that, an allegation has got to be made on behalf of the respondents, and a decision has to be given by the learned Magistrate. It is for the respondents to make an application under S. 5 of the Limitation Act, they have to give all reasons for making out sufficient cause in their favour. If they succeed in doing so before the Magistrate, perhaps, they may be entitled to claim maintenance. At any rate, nothing definite could be stated at this stage. As I have stated above, some evidence was needed to arrive at a decision under S. 5 of the Limitation act. For this, the case will have to be sent back to the learned Magistrate. ( 8 ) THE revision is, therefore, allowed and the order of the learned magistrate is set aside. The case is remitted for consideration as to whether the period of limitation could be extended under Sec. 5 of the limitation Act. --- *** --- .