The limitation period for setting aside an ex parte order under Section 488 Cr. P. C. runs from the date of actual or constructive knowledge of the order, not from the date of the order itself.

JAGANMOHAN REDDY, J.

( 1 ) THE Additional Sessions Judge, Hyderabad has made this reference for quashing the order of the II City Magistrate, who set aside an ex parte order for maintenance under Section 488 (1) Cr. P. C. after the period of limitation had expired, viz. , after five month) from the date of the order.

( 2 ) IT may be stated that the husband-respondent when he was given the summons for service stated that he being a Government servant the same should be served through the Department and as such refused to accept the summons. The Process Server in his affidavit stated that he had read out the contentions of the summons and since he did not accept the service, made a report accordingly. The respondent was treated as ex parte and a maintenance of Rs. 75 was awarded to the revision petitioner by an order dated 10/06/1963. An application by the respondent was made on 9-10-1963 to set aside the ex parte order and without any notice to the revision petitioner the Magistrate on 10/12/1962 passed an order setting aside the ex parte order.

( 3 ) THE Addl. Sessions Judge, Hyderabad in his reference stated that under the provisions of subsection (6) of Section 188 the three months are from the date of the order, as such the Court has no power to enlarge the period of limitation and consequently the Magistrate could not set aside the ex parte order. In support of this proposition he has cited the case of A. S. Govindau v. Jayammal, AIR 1950 Mad 153 in which Somasundaram J. , held that the period of three months does not mean three months from the date, of the knowledge of the order. Where the application is made more than three months from the dale of the order, it is liable to be dismissed, It was observed that the petitioner in that case wanted to import the word knowledge which is not there. But that could not be permitted because if it is the intention of the Legislature that it should be three months from the date of the order, it should have said so.

( 4 ) THIS, in my view, as observed by their Lordships of the Supreme Court in the case of Harish Chandra v. Deputy Land Acquisition Officer. AIR 1961 SC 1500 is a purely literal and a mechanical way of considering the question. The date of the order passed can only have some relation to the knowledge of the person against whom the order is made and who is ex parte. Supposing an order is made against a person who is set ex parte and who has in fact no knowledge of the order and the person in whose favour the order is made takes no steps for three months or more to execute that order, he or she could by their own act or volition preclude the person against whom the order has been made. Even in land acquisition causes where a limitation has been prescribed from the date of the award there is a cafena of cases which have interpreted that order to mean the knowledge of the passing of the award, either actual or constructive. These authorities were considered in the Supreme Court case referred to above by Gajendragadkar, J. , as he then was where he observed"where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by this Collector under Section 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fair play and natural justice. Therefore the expression the date of the award used in proviso (b) to Section 18 (2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually, or constructively. It will be unreasonable to construe the words "from the date of the Collectors award" used in the proviso to Section 18 in a literal or mechanical way".

( 5 ) THEIR Lordships approved of the observation of Rajam

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