V. K. SINGHAL, J. ( 1 ) THE order of the Family Court rejecting the petition filed by the petitioner under Sec. 126 (2), Cr. P. C. has been challenged in this petition. The respondent filed a petition under Section 125, Cr. P. C. on 27-7-1992 seeking maintenance of Rs. 500/ -. Objections were filed and the advocate for the petitioner also appeared but on 9-2-1994, the Presiding Officer was on leave. It is stated that thereafter the advocate has not appeared and ultimately the order under Sec. 25 was passed on 3-9-1994 awarding maintenance of Rs. 400/- per month. Petition under Sec. 126 (2) was moved on 29-9-1994. The learned Judge was of the opinion that the provisions of Sec. 126 (2), Cr. P. C. are applicable to set aside the ex parte order. But there is no provision for setting aside theex parte judgment. In other words, the application under Sec. 126 (2), Cr. P. C. could have been moved when the main matter under Sec. 125, Cr. P. C. was pending. ( 2 ) ARGUMENTS of both the learned Counsel for the parties heard. Section 125 authorises the Magistrate to pass an order in the circumstances given therein. Section 126 prescribes the procedure for a proceeding under Sec. 125. The relevant provision of Sec. 126 (2) is in dispute reads thus :-"126. Procedure- (1) xx xx xx (2) 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 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. "from the reading of the above proviso it is evident that the Magistrate has the power to proceed ex parte in the circumstances.- (a) Where the defendant is lawfully evading service and (b) wilfully neglecting to attend the Court. In both the situations the Magistrate may proceed to hear and determine the case ex parte, which has reference to the application moved u/s. 125. The petitioner in the present case has not avoided the service as after service of the summons he has filed objections and appeared before the Court at the initial stage. The other condition of giving jurisdiction to the Magistrate to determine the case ex parte is where the respondent wilfully neglected to attend the Court. Wilfully neglecting to attend the Court implies that it is only after service of the notice and still the respondent may remain absent. There could have been an order directing to proceed ex parte or there could be a final disposal of the petition u/s. 125 itself. The proviso provides that any order so made may be set aside for good cause shown on an application made within 3 months from the date thereof. If the applicant is able to show the good cause then the ex parte order so made can be set aside. ( 3 ) A contention is raised that against the final order which is passed u/s. 125 which amounts to judgment against which the remedy of revision could be availed. But if it is for placing the other side ex parte by passing an order which could be challenged under the provision to Sec. 126 (2), Cr. P. C. The interpretation of the learned Counsel is not correct. Because when the proviso gives the power to pass the order ex parte which could be either by passing an order u/s. 125 or placing the other side ex parte and proceeding u/s. 125, Cr. P. C. contemplates passing of an order and therefore, it cannot be said that the order passed u/s. 125 is not an order or that the application u/s. 126 (2) is not maintainable. ( 4 ) TRIAL Court relied on the judgment given by this Court, where it was observed that the orders which have been passed in accordance with first part of the proviso could be prayed to be set aside. ( 4 ) TRIAL Court relied on the judgment given by this Court, where it was observed that the orders which have been passed in accordance with first part of the proviso could be prayed to be set aside. Reference was made to a judgment given by this Court in State v. Bhim Rao, AIR 1963 Mys 239 : (1963 (2) Cri LJ 293), where the order awarding monthly maintenance which was passed ex parte was prayed to be set aside. It is observed that the words "orders so made" must necessarily imply an order passed in conformity with the first part of the proviso. If the order itself is not in conformity with the first part of the proviso, the second proviso prescribing a period of three months from the order so made will not come into operation. In this case it was further observed that, the Magistrate requires subjective satisfaction on his part that the respondent is avoiding summons wilfully or that he is wilfully neglecting to attend the Court. It was found that it is only thereafter the Magistrate can proceed to hear and determine the case ex parte. It was found that neither the order passed by the Magistrate nor the order-sheet discloses that the Magistrate was satisfied that the respondent was wilfully avoiding service or was wilfully neglecting to attend the Court and accordingly the order is set aside. ( 5 ) THE other judgment relied is in the case of Hemendra Nath Chowdhury v. Smt. Archana Chowdhury, AIR 1971 Cal 244 : (1971 Cri LJ 817), wherein it is observed that,". . . . non-compliance to the procedure established by law resulting in material prejudice to the 2nd party-petitioner who was denied the opportunity of being heard before being saddled with an order of maintenance. A failure on the part of learned Chief Presidency Magistrate, Calcutta, to take this point into consideration has resulted in a failure of justice and the ultimate order passed by him on the 17th November, 1969 is also bad and improper on this count. "this Court in the case of P. N. Godaiah has only reference to compliance or non-compliance of the first part of the proviso and therefore, cannot be considered that an application for setting aside the order of ex parte made under Sec. 125 is not maintainable. "this Court in the case of P. N. Godaiah has only reference to compliance or non-compliance of the first part of the proviso and therefore, cannot be considered that an application for setting aside the order of ex parte made under Sec. 125 is not maintainable. If the final orders determining the case ex parte have been passed u/s. 125 the application under Sec. 126 (2), Cr. P. C. is maintainable. The only thing on such an application could be seen is, as to whether a good cause has been shown by the applicant, which is a matter to be examined by the trial Court and if the Court is satisfied that a good cause is shown then the application has to be allowed. Since in the present matter, the Court has not gone on the question of good cause, therefore, the order dated 7-11-1997 is quashed and it is directed that the application submitted by the petitioner be heard afresh. It is open for the petitioner to show the good cause to the Court below. There is no definition of judgment in Cr. P. C. Section 2 (9), CPC defines the judgment as statement be given by the Judge of the grounds of the decree or order. An interlocutory order in a criminal case is not a judgment. Proceedings u/s. 125 are all summary in nature. Section 125 itself has used the word "order" in different sub-sections and, therefore, the word "order" used in Sec. 126 (2) has to be interpreted to include the order passed on the application u/s. 125 which may be the interim order placing the other side ex parte and also an order which has finally been passed u/s. 125. With the above observations, the application submitted by the petitioner u/s. 126 (2) therefore will have to be decided afresh in the light of the observations made above. Accordingly the petition is allowed. Petition allowed. --- *** --- .