M. S. PATIL, J. ( 1 ) THIS revision is directed against the order dated 31-12-1979 passed by the judicial Magistrate First Class, Bagalkot, in Mis. No. 62/79, whereby he has dismissed the application made by the petitioner under S, 126 (2) Cr. P C. on the ground that it was barred by time and principles of res-judicata. ( 2 ) IT arises in this way : The respondent claiming to be legally wedded wife of the petitioner made an application on 3-10-1477 under S. 125 Cr. P. C. in Crl. Mis. No. 82/77 claiming separate maintenance on the ground that the petitioner had neglected and refused to provide maintenance to her. It is not clear from the proceedings how the notice of the application was served on the petitioner. According to the Petitioner, however the notice was served on him by a registered post between 8-11-77 and 14-11-77. The case was posted on 14-11-77. It appears, the petitioner sent a telegram on 14-11-77 seeking adjournment. The judicial Magistrate First Class, however, ignoring the same, but without recording any reasons about his satisfaction that the petitioner was wilfully neglecting to attend the Court, made an order placing him ex parte as follows : "14-11-77 Applicant by V. S. K. appearance SS. served. Respondent called and placed ex parte. Ex parte by 21-11-77 Sd. 14-11-77" ( 3 ) ON the adjourned date, on 21-11-77 he proceeded to record the evidence of respondent on 21-11-77 and made an order awarding maintenance to respondent at the rate of Rs. 80 per month from the date of order. ( 4 ) ON coming to know of the said order, when the petitioner approached the Sessions Judge, Bijapur, in Cr. Rev. Appln. No. 21 of 78, the learned Sessions judge dismissed the petition. Being aggrieved, the petitioner approached the High court, in Crl. Petn. No. 401/78. The High court by its judgment dated 6-2-77 set aside the order passed by the Sessions judge in Cr. Rev. Rev. Appln. No. 21 of 78, the learned Sessions judge dismissed the petition. Being aggrieved, the petitioner approached the High court, in Crl. Petn. No. 401/78. The High court by its judgment dated 6-2-77 set aside the order passed by the Sessions judge in Cr. Rev. Appln, No. 21 of 78 on the ground that he had no jurisdiction to entertain the revision, since a remedy by way of an application for setting aside the original order of maintenance was available to the petitioner- The High court, it appears, considered it not desirable to go into the merits of the case, the petitioner, therefore, approached the magistrate again by an application dated 27-7-79 with a request to set aside the ex- parte order cf maintenance passed against him. The learned Magistrate having dismissed that application, as already stated above, on the ground that it was barred by time'and principles of res judicate, he has approached this Court in revision. ( 5 ) WHILE Mr. Mandagi, learned counsel for the petitioner, argued that in the circumstances of the case, the ex-parte order dated 14-11-1977 itself being not in compliance with the mandatory provisions of sub-sec. (2) of S. 126 Cr. P. C. . the question of making an application within the time prescribed did not arise, and to such a case principles of res-judicata were also not applicable and the view taken by the learned Magistrate being wholly erroneous, the order under revision deserved to be set aside and by setting aside the order dated 28-11-77, the matter deserved to be remitted back to the Magistrate with a direction to make enquiry afresh in ace. ordance with law. Mr. D. S. Hosmath, learned Counsel for the respondent, on the other hand argued that the petitioner was not only negligent throughout, but he had deliberately avoided to appear before the Court. Therefore, the fact that the magistrate did not state so in the order sheet before placing the petitioner exparte, was no reason to hold that the period of limitation for making an application was not applicable. But, he however, did not support the view taken by the Court below that the application was barred by principles of res-judicata and it appears rightly too. But, he however, did not support the view taken by the Court below that the application was barred by principles of res-judicata and it appears rightly too. ( 6 ) THEREFORE, the short question that requires to be considered is whether in the circumstances of the case, the application for setting aside the ex-parte order dated 28-11-77" made long after the expiry of the period of limitation of thres months, was proper and the Magistrate had erred in dismissing the same. ( 7 ) WHILE it is not clear how the notice of the proceedings was served on the petitioner, if what he contended was true, and there is no reason to hold that it was not true, the service of notice by registered post was itself illegal. For as provided in s. 62 of the Code, every summons under the Crl. P. C. , shall be served be a Police officer or subject to such rules as the State government may make in this behalf, by an Officer of the Court issuing it or other public servant. If all the further proceedings, after service of such summons by registered post were illegal and on that ground itself the ex-parte order of maintenance passed by the Magistrate deserved to be set aside, there is no dispute and it cannot be disputed in view of the provisions of sub-sec. (2) of S. 126 Cr. P. C. that in the proceedings under S. 125 Cr. P. C. all evidence adduced shall be taken in the presence of the respondent against whom an order for payment of maintenance is proposed to be made, unless his personal attendance is dispensed with. There is no dispute that the petitioner was unrepresented. The provisions of sub- sec. (2) of S. 126 Cr. P. C. all evidence adduced shall be taken in the presence of the respondent against whom an order for payment of maintenance is proposed to be made, unless his personal attendance is dispensed with. There is no dispute that the petitioner was unrepresented. The provisions of sub- sec. (2) of S. 126 Cr. P. C. says :"all evidence in such proceedings shall be taken in the presence of the person against whom an order for, payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases : provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance' is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. "the learned Magistrate did not make any record of his satisfaction before placing the petitioner ex-parte that he was wilfully neglecting to attend the Court. Since all the evidence has to be recorded in the presence of the respondent and the Magistrate gets jurisdiction to proceed in the absence of the respondent, only when he is satisfied that he was wilfully neglecting to attend the Court, the ex-parte order made itself being not in accordance with law and the mandatory provisions of sub- sec. (2) of S. 126 Cr. P. C. , the question of the petitioner making application for setting aside the ex parte order within the period of limitation did not arise. This is also the view taken by this Court in State of Mysore v. Bhima Rao (1 ). This Court held that where the records of the Court do not disclose that the method of serving summons prescribed by S. 70 Cr. P. C. was ever attempted or was found to be impossible to be given effect to, service of summons by affixing a copy will be bad in law. This Court held that where the records of the Court do not disclose that the method of serving summons prescribed by S. 70 Cr. P. C. was ever attempted or was found to be impossible to be given effect to, service of summons by affixing a copy will be bad in law. It is also further held that the proviso to S. 488 (6) (now 126 (2)) requires that before the Magistrate proceeds to hear a petition under S. 488 (now 125) in the absence of the respondent, he must be satisfied that either the respondent was wilfully avoiding service or had wilfully neglected to attend the Court. It is only thereafter that the Magistrate can proceed to hear the case ex-parte. ( 8 ) IN the said case, the application for setting aside the ex-parte order was made long after the period of limitation and it was held that if the order placing ex-parte is not in conformity with the first part of the proviso, the second part prescribing a period of three months for setting aside the ex-parte order will not come into operation. This aptly applies to the present facts of the case. Therefore the Magistrate was clearly wrong in dismissing the application made by the petitioner for setting aside the ex-parte order. ( 9 ) THE order under revision is, therefore, liable to be set aside and it is accordingly, set aside. ( 10 ) THE orders dated 14-11-1977 and 28-11-1977 are also set aside and the case is remitted back to the Court of the Judicial Magistrate First Class, Bagalkot with a direction to make further inquiry into the application and dispose of the same in accordance with law. ( 11 ) SINCE, it is a very old case, the parties are directed to appear before the magistrate on 18-9-1980 and the Magistrate shall also proceed to hear the evidence and dispose of the case expeditiously. --- *** --- .