JUDGMENT 1. - This miscellaneous petition under Section 482, Cr.PC is directed against the order of Munsif and Judicial Magistrate, Sawai Madhopur dated 23rd July, 1987 where by he issued warrants for recovery of maintenance amount under Section 125(3), Cr.PC. 2. Brief facts, giving rise to this petition are that the petitioner and non-petitioner are husband and wife but living separately. The non-petitioner, Mst Geeta Bai, had filed a petition under Section 125, Cr.PC claiming maintenance against her husband, the petitioner, vide an application dated 25th August, 1982. This application was filed before the Chief Judicial Magistrate, Sawai Madhopur who accepted the same on 8th December, 1983 and granted maintenance with effect from the date of application i.e. 25th August, 1982 at rate of Rs 100/- p.m. The non-petitioner applied for recovery of maintenance granted vide order dated 8th December, 1983 on 31st August, 1984 but this application was dismissed in default on 10th June, 1986. On 13th June, 1986 an application was moved by the non-petitioner in the Court of Munsif and Judicial Magistrate, Sawai Madhopur under Section 125(3), Cr.PC where in it has been mentioned that she had moved a similar application earlier wherein the date of hearing was fixed as 9th June, 1986 but that day was declared as a holiday and hence the file was taken up on 10th June, 1986 and was dismissed for default It was further mentioned that in fact the holiday initially announced by the Government was on 10-6-86 but later on it was changed, to 9-6-1986 and, therefore, there was a bonafide mistake on the part of the non-petitioner and in this view of the matter despite that order another application under Section 125(3), Cr.PC had been filed. It was prayed in the application that 45 months' commulative maintenance amounting to Rs. 4,500/- upto 25th May, 1986 and Rs. 100/- per month for future be granted. This application was contested by the petitioner but the learned Magistrate allowed the application and directed the insuance of warrant for recovery of Rs. 5,800/- as maintenance with effect from 25-8-1982 to 25-6-1987. The learned Magistrate also sent a warrant of recovery for this recurring amount to his office at Kota where by Rs. 100/- per month is directed to be deducted from his salary. 3. 5,800/- as maintenance with effect from 25-8-1982 to 25-6-1987. The learned Magistrate also sent a warrant of recovery for this recurring amount to his office at Kota where by Rs. 100/- per month is directed to be deducted from his salary. 3. It is contended by the learned Counsel for the petitioner that the order of Magistrate is absolutely without jurisdiction and amounts to abuse of the process of the court in as much as even the mandatory provisions of law have been ignored The submission of the learned Counsel is that the application under Section 125(3), Cr.PC had been rejected in default on 10-6-1986 and unless it was set aside, maintenance could be awarded prior to that date. In is further submitted that the learned Magistrate has acted without jurisdiction and with absolutely impropriety in sitting over the judgment of the learned Chief Judicial Magistrate. The submission is that on 10-6 1986, the application was dismissed by Chief Judicial Magistrate who is an authority higher in rank than the Magistrate and after the rejection of the same if another application had to be filed, it should have been an application for review or recalling the order before the same authority. It is not the case of the party that the Chief Judicial Magistrate was not in town or the post was lying vacant as such in all property, the application dated 13-6-1986 should have been addressed and presented before the same Chief Judicial Magistrate who had dismissed it on 10th June, 1986 Besides this if this is not an application for recalling or reviewing the earlier order of rejection dated 10th June, 1986 then subsequently the learned Magistrate had vary limited jurisdiction and he could only grant maintenance from the date of filing of the application before him to the date of payment It is then submitted that at best non-petitioner could have claimed maintenance for a period of one year from the date of his filing application under Section 125(3) Cr. PC and the court does not have power to recover maintenance beyond a period of one year There is one more submission of the learned Counsel that question of realisation of maintenance accrued from month to month and, therefore a general direction cannot be issued to the office of the petitioner for deduction of Rs 100/- per month directly from the wages of the petitioner. If is submitted that it was never contemplated by law that application under Section 125(3) Cr.PC should be filed only before the Magistrate who had initially entertained the application but it may be filed for enforcement of the order of maintenance before the Magistrate in Kota later on and not at Sawai Madhopur because the petitioner against whom the order was made, is staying at Kota. Reference has been made to Section 128 Cr.PC. 4. Learned Counsel for the non-petitioners submits that application under Section 482 Cr PC could not at all be entertained because it has been filed on behalf of the weaker sex and who has been deprived of maintenance for such a long period Learned Counsel submits that it was a mistake of the lawyer, who filed the application on 13th June, 1986 that it was presented before the Magistrate instead of Chief Judicial Magistrate who had rejected the earlier application but party should not be made to suffer on that count It is submitted that even if there is an error to that effect it is not such an error for which interference should be done in proceedings under Section 482 Cr. PC. He then submits that the Magistrate at Sawai Madhopur has concurrence jurisdiction with that of the Magistrate at Kota because Section 128 Cr PC is an additional mode for enforcement of the order of maintenance then one mentioned in Section 125(3) Cr PC It is also submitted that there is no error in giving a general direction to the office of the petitioner for recovery of monthly amount of maintenance. 5. I have given my thoughtful consideration to the rival submissions. 6. Before I address myself on the questions raised it is essential to mention that this case has very peculiar facts where the non-petitioner has been deprived of fruits of litigation for a very long period for a fault which docs not lie with her and as such the main question would be as to whether she can be deprived from enjoying the fruits of the litigation which she has faught ever since 1982 ? She moved an application for grant of maintenance as early as 26th August, 1982 and it had taken almost a year and a quarter to be decided. She moved an application for grant of maintenance as early as 26th August, 1982 and it had taken almost a year and a quarter to be decided. When it was decided obviously she was granted maintenance from the date of application and she did move on application on 31-8-1984 for recovery of maintenance before the same court which granted maintenance on 8-12-1984 i.e. 9 months of the date of acceptance of her application. But it is regretable that the said application for enforcement of the order of maintenance could not be disposed of for almost 2.5 years which is a sad commentary on the system of administration of justice itself and it was ail the more unfortunate that the learned Chief Judicial Magistrate dismissed that application in default on 10th June, 1986. He could in fact failed to act: in accordance with the sence of justice in as much as he did not realise that a lady who has been fighting for maintenance since 1982, is not in a position to get it for such a long period. Besides that, is was not a day on which the case was listed though technically according to the rules, file should have been taken on that day for hearing. It is expected of the court administering justice to look into the intention of the party also while dealing with an application like the present. Firstly, there is no provision in the Code of Criminal Procedure, 1973 to dismiss any case in default, secondly, even it was to be dismissed, the court was obliged to see as to whether such dismissal was likely to cause injustice to the party and whether it should have been done at all particularly when 10th June, 1986 was initially a notified holiday which was advanced for a day earlier and in normal course also the party was not expected to come on that day. Thus, dismissing the application for enforcement of maintenance, in my opinion was not proper. How ever, it would have been better for the counsel for non-petitioner had he moved the application for recalling of the order before the learned Chief Judicial Magistrate assigning the reasons for absence on 10th June, 1986 instead of filing it before the another Magistrate. Thus, dismissing the application for enforcement of maintenance, in my opinion was not proper. How ever, it would have been better for the counsel for non-petitioner had he moved the application for recalling of the order before the learned Chief Judicial Magistrate assigning the reasons for absence on 10th June, 1986 instead of filing it before the another Magistrate. So far as order regarding enforcement of the order of maintenance is concerned, I am in agreement with the conclusion arrived at by the learned Magistrate but at the same time I do not approve of his handling the matter since he should have directed the party to approach the Chief Judicial Magistrate and should have allowed him to pass an order. When any order is passed by the learned Chief Judicial Magistrate on the same subject matter in the same case, it is against the property that any other subordinate to him in the same area takes up the file and passes an order. A hierachy of courts has been prescribed under the law and when a judicial order is passed by the next higher court or when a court of concurrence jurisdiction, if a similar application on the same subject matter is filed and that officer is available then the propriety demands that it should be heard by the same officer. But in view of the fact that I am of the same view on merits which has been taken by the learned Magistrate, 1 am not inclined to set aside the order on this ground of vechnicality though there is one more reason that he should not have entertained the application because application for enforcement of order of maintenance can either be filed before the court which passes the order of maintenance under Section 125 Cr PC or before a Magistrate where the person, against whom order of maintenance is made, lives. Under Section 125 Cr PC in Sub-section (3) the word, 'such' proceeds the word, 'Magistrate' at all places including that of proviso and the word 'such' refers to the Magistrate who entertained the original application therefore, application under Section 125(3) Cr PC can always be filed before the Magistrate who has passed the original order granting maintenance. Section 128 Cr. Under Section 125 Cr PC in Sub-section (3) the word, 'such' proceeds the word, 'Magistrate' at all places including that of proviso and the word 'such' refers to the Magistrate who entertained the original application therefore, application under Section 125(3) Cr PC can always be filed before the Magistrate who has passed the original order granting maintenance. Section 128 Cr. PC gives additional Jurisdiction to another Magistrate also, who is a Magistrate at any place where the person against whom the order of maintenance is made and that Magistrate, if he is satisfied as to the entity of the parties and nonpayment of the allowance due, may get the order of maintenance enforced. I, how ever, do not agree with the submission of the learned Counsel for the petitioner the Magistrate granting maintenance had no jurisdiction and it is only the Magistrate at Kota who had the jurisdiction Section 128 Cr. PC in my opinion, confers jurisdiction on the Magistrate in addition to the jurisdiction of the Magistrate granting maintenance and he had limited jurisdiction only for enforcing the order. Jurisdiction of the Magistrate granting maintenance cannot be ousted because either of the parties can move the application (for the purposes of sub sections (4) or (5) of Section 125 Cr. PC and that can be done only before the Magistrate granting maintenance therefore, there is no force in this argument. 7. I have, therefore, no hesitation in holding that the order of the teamed Magistrate does not suffer from any illegality How ever, the learned Magistrate had no jurisdiction to issue a recurring warrant for deduction of the amount from the salary of the petitioner from month to month because Section 125(3), Cr. PC provides that a warrant for levying the amount due can only be issued if the persons, ordered to pay maintenance, fails without sufficient cause to comply with the order granting maintenance and for each breach of the order, therefore, a separate warrant has to be issued. In other words, no warrant can be issued unless the amount falls due. Hence warrant in advance for realisation cannot be issued. In other words, no warrant can be issued unless the amount falls due. Hence warrant in advance for realisation cannot be issued. Thus so far as the issuing warrant is concerned, the same view has been taken by Hon'ble N.C. Sharma, J in Govind Sohai v. Prem Devi 1987 RCC 180 wherein it has been held that Section 125(3) provides that if any person ordered to pay maintenance, fails, without sufficient case, to comply with the order, the Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person, for the whole or any part of each month's allowance remaining art-paid after execution of the warrant to imprisonment for term which may extend to one month or until payment if sooner made. So far as future maintenance allowance is concerned, the monthly amount of maintenance becomes due every month and, therefore, maintenance amount with respect to future will become due only when the person fails to pay the same The Judicial Magistrate had passed a recurring or running order assuming that the petitioner would commit a breach of order in future as well. This could not be done by the Judicial Magistrate in view express language of Section 125(3), Cr. PC that it is for each breach of the order that Magistrate has to issue a warrant for levying amount due in the manner provided for levying fine. 8. In this view of the matter, this application is partly allowed. The order granting maintenance with effect from the date of application for maintenance i.e. 25th August, 1982 till the date of realisation is maintained but the warrant regarding deduction of amount of maintenance from the wages each month is set aside. It would be free for the non-petitioner to move application for realisation of amount of maintenance either before Magistrate at Sawai Madhoppur or before the Magistrate having jurisdiction learned over the area where the petitioner stays i.e. at Kota.Application partly allowed. *******