Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 21 (AP)

Kunhimohammed v. Nafeesa

2003-01-06

R.RAJENDER BABU

body2003
ORDER R. Rajendra Babu, J.— The respondents filed M.C. 29/2001 before the Family Court, Manjeri claiming maintenance from the revision petiti-oner under Section 125 of the Code of Criminal Procedure (for short to be referred to as the Code hereinafter). The Family Court passed an ex parte order granting maintenance. The petitioner challenged the above ex parte order before this court by filing R.P. (F.C.) 26/2002. This court allowed the above revision and set aside the ex parte order on condition that the revision petitioner would deposit Rs. 7,500/- towards the arrears of maintenance within two weeks from the date of the order. It was further directed that if the revision petitioner fails to make a deposit as directed, the ex parte order will stand affirmed and the revision will stand dismissed. The above order was passed on 3.10.2002. The petitioner could not deposit the amount in time and accor-dingly he filed the present petition for reviewing the order and for extending the period for deposit. 2. The learned counsel for the petitioner submitted that the order of this court to deposit the arrears of maintenance could not be complied with in time as the petitioner was abroad. The learned counsel for the respondents submitted that the order of the court below had already come into effect by the noncompliance of the condition and the above order was not liable to be reviewed in view of S. 362 of the Code. It was further argued that an order passed by this court cannot be modified or reviewed, except a clerical error or mistake as Section 362 of the Code is a bar for considering the present appli-cation for review. The learned counsel for the petitioner submitted that the proceedings under Chapter X of the Code regarding the grant of mainte-nance to the wife, children and parents is totally different from the other proceedings contemplated under the Code and even S.125 of the Code empowers the court to pass an ex parte order and to set aside such ex parte order when sufficient reasons are shown for the absence of the party. Further S.127 of the Code permits the court to modify or review its own orders in change of circumstances. Thus the proceeding under Chapter X of the Code stands in a different footing than the other proceedings contemplated by the Code. Further S.127 of the Code permits the court to modify or review its own orders in change of circumstances. Thus the proceeding under Chapter X of the Code stands in a different footing than the other proceedings contemplated by the Code. The learned counsel for the petitioner further submitted that even a petition under S. 125 of the Code dismissed for default can be restored in view of the provisions in Chapter X. He placed reliance on a decision of the Delhi High Court in Smt. Prema Jain v. Sudhir Kumar Jain1, wherein it was held that the Magistrate had power to restore a petition under S.125 of the Code dis-missed for default. The same view was taken by the Punjab and Haryana High Court in Pavittar Singh v. Bhupinder Kaur2. I respectfully agree with the above view taken by the Delhi and Punjab & Haryana High Courts. An application under Section 125 of the Code cannot be treated as a police report as contemplated under Section 173 or a complaint as defined in S. 2(b) of the Code. The order to be passed by the court in proceedings under Section 125 is neither an order of acquittal nor a conviction. It is not an order of discharge too. The proceedings under S. 125 in Chapter X stands in a different footing than the other proceedings contemplated by the other provisions of the Code. It is more civil in nature rather than a criminal trial as contem-plated by the Code. Hence the argument advanced by the learned counsel for the respondents that the order is not reviewable under S. 362 of the Code cannot be accepted. S. 362 cannot have any application in respect of orders passed in proceedings under Chapter X of the Code. As S. 362 is not a bar for reviewing the order, this court is fully competent to review its earlier order. It is settled law that time can be extended even after the expiry of the stipulated time in view of S. 148 of the Code of Civil Procedure. As the proceedings under Chapter X of the Code is more or less similar to the proceedings under the Code of Civil Procedure, the time once granted by this court can be extended even after the expiry of the above period. Hence this petition is allowed. As the proceedings under Chapter X of the Code is more or less similar to the proceedings under the Code of Civil Procedure, the time once granted by this court can be extended even after the expiry of the above period. Hence this petition is allowed. The time for compliance of the order of this court shall stand extended till 15.1.2003. The respondents shall be entitled to Rs. 1000/- towards costs. Application allowed. 1. (1980 Crl. L.J. 80). 2. 1988 Crl. L.J. 1624.