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2013 DIGILAW 894 (CAL)

Nima Wangdi Sherpa v. Sangay Lhamu Sherpa

2013-12-04

JOYMALYA BAGCHI

body2013
Judgment : Joymalya Bagchi, J. Order dated 15.06.2009 passed by the learned Sessions Judge, Darjeeling in Criminal Revision No.4 of 2009 affirming the order dated 30.03.2009 passed by the learned Additional Chief Judicial Magistrate, Kalimpong, Darjeeling in Misc. Execution Case No.5 of 2008 arising out of M.R. Case No.10 of 2006 under section 125 of the Code of Criminal Procedure, 1973 refusing to dismiss a part of the claim as barred by limitation has been assailed. It appears that in the instant case execution proceeding had been instituted to enforce payment of remainder of the dues arising from the interim maintenance allowance payable from May 2006 to April 2008 being to the tune of Rs.1,47,000/-. Part of such claim was resisted in the courts below on the ground that the execution proceeding had been instituted beyond the period of limitation as stipulated by section 125(3) of the Code of Criminal Procedure, 1973 and that no claim earlier than May 2007 was admissible. The order of interim maintenance was passed on 29.05.2006. Such order was stayed by the revisional court on 12.06.2006. The stay order was a conditional one. It appears that the condition of paying a part of the interim maintenance upon which such stay was granted, in fact, was discharged by the petitioner. Finally, the order of stay was vacated on 04.06.2007 and the execution proceeding was instituted on 17.05.2008. Mr. Basu, learned counsel appearing for the petitioner, submitted that the order of stay passed by the revisional court was an order of stay of operation of the order of interim maintenance and not an order of stay on execution thereof. He submitted that in absence of a stay on execution of the said order, benefit in respect of such period for the purposes of limitation cannot be given to the opposite party. He relied on M/s. Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association, Madras, AIR 1992 SC 1439 and Anandilal & Another vs. Ram Narain & Others., (1984) 3 SCC 561 . In spite of service of notice, nobody appears for the opposite parties. Admittedly, the execution proceeding for the remainder of interim maintenance dues had been instituted within one year from the date on which the stay order had been vacated. In spite of service of notice, nobody appears for the opposite parties. Admittedly, the execution proceeding for the remainder of interim maintenance dues had been instituted within one year from the date on which the stay order had been vacated. The question is whether the period during which such stay order was subsisting is to be deducted in computing the period of limitation as provided in section 125(3) of the Code of Criminal Procedure, 1973. The relevant portion of Section 125(3) Cr.P.C., 1973 is as follows: “125(3) If any person so ordered fails without sufficient cause to comply with the order, any such 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 months [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. “If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.” A bare reading of the said provision would show that the period of limitation for institution of proceeding for recovery of maintenance allowance is within the period of one year “from the date on which such allowance became due.” The issue as to the starting point of limitation in execution proceeding under section 125(3) of the Code of Criminal Procedure, 1973 had fallen for decision before the Apex Court in Amarendra Kumar Paul Vs. Maya Paul, 2009 SCC (suppl.) 2869. Maya Paul, 2009 SCC (suppl.) 2869. In that case, as in the instant one, a stay was granted on the order of maintenance by the revisional court. In view of the stay granted by the revisional court, the Apex Court interpreting section 15 of the Limitation Act, held that in computing the period of limitation for filing execution proceeding under section 125(3) of Cr.P.C., 1973, the period for which such stay order was in force is to be exempted. Applying the ratio of Amarendra Kumar Paul (supra) in the facts of this case, there is no escape from the conclusion that the execution proceeding under section 125(3), Cr.P.C., 1973 which had been filed within one year from the date on which the stay order was vacated was clearly within time. Once an order of maintenance is stayed, it cannot be said that the money is due and payable under such order. Hence, I am of the view that the stay of operation of the order of maintenance passed under section 125 of the Code of Criminal Procedure, 1973 would effectively amount to stay on the execution of such order since it cannot be said that the maintenance directed to be paid in terms of the said order is due and payable during the period when such stay is operative. Section 125 of the Code of Criminal Procedure, 1973 is a beneficial legislation for protection of the needs of the weaker sections of society, namely destitute women, children and old parents. Interpretation of such a provision enacted to ameliorate the needs of such weaker sections of society must receive a liberal interpretation in their favour. Stay of operation of order of maintenance amounts to an embargo on its realisation and the maintenance allowance ceases to be due and payable during the subsistence of the stay order. Hence, the period during which such order of maintenance is stayed must be deducted while computing the period of limitation. In M/s. Shree Chamundi Mopeds Ltd. (supra) the question which fell for decision was whether an order passed by an authority gets extinguished upon a stay order being passed by a superior Court. The Apex Court held that a stay order passed by the superior Court does not result in cessation of such order. In M/s. Shree Chamundi Mopeds Ltd. (supra) the question which fell for decision was whether an order passed by an authority gets extinguished upon a stay order being passed by a superior Court. The Apex Court held that a stay order passed by the superior Court does not result in cessation of such order. In Anandilal (supra) the Apex Court held that partial stay of execution of a decree would tantamount to a stay of execution of the entire decree for the purpose of limitation as beneficial construction is to be given while interpreting the provisions of the Limitation Act. The above cases cited by the petitioner do not deal with the matter in issue and does not in any manner advance the cause of the petitioner. On the other hand, the ratio in Anandilal (supra) wherein it is held that when two interpretations are possible, the provisions of the Limitation Act are to be given a wider and more elaborate interpretation so that a justifiable claim is not aborted on the anvil of procedural law, in fact, persuades me to take a liberal view as to the period of limitation under the provisions of section 125(3) Cr.P.C. and sustain the claim of the opposite party herein. For the aforesaid reasons, I am unable to accept the argument advanced on behalf of the petitioner. The application is rejected. Interim order, if any, stands vacated.