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2023 DIGILAW 285 (CHH)

Mahesh Dubey S/o Shri Jagdish Prasad Dubey v. Sharda Dubey W/o Mahesh Dubey

2023-07-06

DEEPAK KUMAR TIWARI

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ORDER : 1. This revision has been filed against the order dated 16.09.2021 passed by the Family Court, Ambikapur, District Surguja in Misc. Criminal Case No. 112/2015 whereby, application preferred by the applicant under Section 126 (2) Code of Criminal Procedure, 1973 read with Section 5 of the Limitation Act for setting aside the ex-parte maintenance order granted in favour of the respondent has been dismissed holding that Section 5 of the Limitation Act is not maintainable [For brevity Code of Criminal Procedure, 1973 hereinafter will be referred as the “Cr.P.C.”]. 2. Learned counsel for the applicant submits that impugned order is contrary to law as learned Family Court has passed the order on the wrong assumption of law that provision of Section 5 of the Limitation Act is not applicable in the proceeding of Section 126 (2) of Cr.P.C. though it is well settled law that there is no bar provided in Section 126 (2) Cr.P.C. to entertain an application for condonation of delay under Section 5 of the Limitation Act. Learned counsel submits that the similar issue has been dealt with by the High Court of Patna in the matter of Md. Balal Uddin vs. Tabassum Aara (decided on 10.03.2017 in Criminal Revision No. 1089 of 2014), wherein the Hon’ble Court placed reliance on the Full Bench decision of Kerala High Court in case of Balan Nair vs. Bhavani Amma, AIR 1987 Kerala 110 in which it was held that Section 5 of the Limitation Act can be invoked for condoning the delay in filing application under Section 126 of the Code. 3. Learned counsel for the applicant also places reliance on the judgment rendered by Calcutta High Court in the matter of Satrughna Adak vs. Sonali Adak Nee Tung, 1993 Cri. L.J. 1892 (decided on 08.04.1993) and draws attention of this Court towards paragraphs 18 and 19 which reads thus: “18........whether the aggrieved person who filed an application for setting aside an ex-parte order is entitled to have the benefit of Section 5 of the Limitation Act. Section 5 of the said Act reads as follows: “5. L.J. 1892 (decided on 08.04.1993) and draws attention of this Court towards paragraphs 18 and 19 which reads thus: “18........whether the aggrieved person who filed an application for setting aside an ex-parte order is entitled to have the benefit of Section 5 of the Limitation Act. Section 5 of the said Act reads as follows: “5. Extension of prescribed period in certain cases: Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.” 19. It would be seen that Section 5 provides for the admission of appeal or application mentioned in the said Section after the “prescribed period” The expression “prescribed period” has been defined in Clause (j) of Section 2 of the Act. It means the period of limitation computed in accordance with the provisions of the Limitation Act. The period of limitation as defined in Clause (j) means the period of limitation prescribed for any suit, appeal or application by the Schedule of the Act. In the Schedule itself, however, an application under Section 126 of the Criminal Procedure Code has not been mentioned. But in view of Sub-Section (2) of Section 29 of the Act where any special or local law prescribes for any suit, or application a period of limitation different from the period prescribed by the Schedule, for the purpose of determining the period of limitation prescribed for any suit, appeal or application by such special or local law the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule. Provisions of Sections 4 to 24 of the Act would, therefore, be applicable for determining the period of limitation prescribed by the special or the local law to the extent they are not expressly excluded by such special or local law. There is nothing in Section 126 of the Criminal Procedure Code to expressly bar the application of Section 5 of the Limitation Act. So Section 5 may be availed of for computing the period of limitation prescribed in Section 126.” 4. There is nothing in Section 126 of the Criminal Procedure Code to expressly bar the application of Section 5 of the Limitation Act. So Section 5 may be availed of for computing the period of limitation prescribed in Section 126.” 4. Learned counsel for the applicant also places reliance on the judgment passed by this High Court in the matter of Shobhnath vs. Sukhmaniya and Another, 2014 (5) MPHT 27 (CG) whereby it has been held that limitation for setting aside ex-parte order of maintenance under proviso to sub section (2) of Section 126 of the Cr.P.C. will begin from the date of knowledge of the order to the aggrieved party and not from the date of passing of the ex-parte order of maintenance, as any other interpretation will defeat the intention of legislature and would not be expedient in the interests of justice. Learned counsel for the applicant submits that in view of the aforesaid legal propositions and considering the circumstances of the case, the impugned order is not sustainable and same deserves to be setting aside. 5. On the other hand, learned counsel for the respondent opposes the prayer made by the applicant, however, he did not dispute the aforesaid legal propositions. 6. Heard learned counsel for the parties and perused the record with utmost circumspection. 7. It is well settled that a decision adversely affecting a party does not come into force before that party acquires notice thereof and the period of limitation should therefore, be reckoned from the date of knowledge of the ex-parte order. Terminus a quo for reckoning the period is not the date of the order. Limitation period of three months for setting aside an ex-parte order of maintenance begins from the date of knowledge and not from the date of passing of the order. Section 126 (2) of the Cr.P.C. is in the nature of civil proceeding, therefore, Section 5 of the Limitation Act can be invoked. 8. Considering the legal propositions and observations made in Shobhnath vs. Sukhmaniya (Supra), Satrughna Adak vs. Sonali Adak Nee Tung (Supra) and Md. Balal Uddin vs. Tabassum Aara (Supra) and also considering the facts and circumstances of the instant case, this Court is of the opinion that impugned order passed by the Family Court is not sustainable and same deserves to be set aside. 9. Balal Uddin vs. Tabassum Aara (Supra) and also considering the facts and circumstances of the instant case, this Court is of the opinion that impugned order passed by the Family Court is not sustainable and same deserves to be set aside. 9. The matter be remitted back to the Family Court, Ambikapur to decide afresh. Learned Family Court is directed to decide the application under Section 5 of the Limitation Act along with application under Section 126 (2) of the Cr.P.C. which has been filed against the ex-parte order dated 03.08.2011 passed in Misc. Criminal Case No. 90/2009. 10. Both the parties are directed to remain present before the concerned Family Court on 01.08.2023. It is also directed that no adjournment shall be granted in the matter except under unavoidable circumstances. 11. The Family Court is also directed to make earnest endeavour to decide the lis expeditiously preferably within a period of six months from the date of receipt of a copy of this order. 12. Accordingly, this Revision is allowed to the extent indicated above.