1. Rule. Returnable forthwith.

2. Heard Finally with consent of parties.

3. This is a revision against the order passed by the Judge of the Family Court, whereby she rejected an application for condonation of delay and setting aside the ex parte order.

4. A few facts may be narrated thus -

The present non-applicant had filed an application under section 125 of the Code of Criminal Procedure for grant of maintenance against the present applicant. The said application came to be filed in the year 1999. It is alleged that he was served with the notice of the said application but he remained absent in the Family Court and therefore, Family court pronounced ex parte judgment against the present applicant.

5. The applicant has contended in the application that he was never served with the notice of the application under Section 125 of the Code of Criminal Procedure. He came to know of the ex parte judgment only when his salary was attached in execution of the order of the Family court. He contends that it is thereafter that he applied for obtaining certified copy of the judgment. He preferred an application under Section 482 of the Code of Criminal Procedure before this court which was subsequently withdrawn and he was granted liberty to file application under Section 126 of the Code of Criminal Procedure before the appropriate court i.e. the family court.

He therefore, moved an application before the Family court and the said application came to be rejected only on the ground that there is no proper explanation as to delay in filing the application.

6. The Section 126 of the Code of Criminal Procedure says that after ex parte judgment is delivered, the person against whom the ex parte judgment is delivered can apply for setting aside the ex parte judgment on showing good cause within three months. The said ex parte judgment came to be delivered on 25/2/2001 and this application for setting aside ex parte judgment came to be filed before the Family court on 27/5/2003. It was submitted that the application is hopelessly barred since the time provided under the Act is only of three months. The Code definitely says that the application can be filed within three months. It is now settled law that whenever application is required to be filed, it can be filed within three months from the date of knowledge. So, the time has to be reckoned from the date of knowledge. In this case, the applicant has contended that he came to know of the judgment having been delivered against him only when his salary was attached. The court need not go into the question as to whether the notice of the original application was or was not served. That is immaterial. The court has only to see when the applicant came to know of the ex parte judgment passed by the family court or by the Magistrate. In this case, it is the contention of the applicant that he came to know about the ex parte judgment in the Month of March,2002 when his salary was attached. Thereafter, he had filed an appeal before this court which was withdrawn and subsequently the application under Section 482 of the Code of Criminal Procedure was also filed, which was also withdrawn. Obviously, the applicant had spent time in prosecuting the appeal and the application under Section 482 of Cr.P.Code before the High Court.

Section 14 of the Limitation Act says that whenever time is spent by the applicant bonafide in prosecuting any proceedings before the court having no jurisdiction, such time needs to be excluded. Therefore, whatever time was spent by the present applicant in prosecuting the appeal as well as the application under Section 482 of Cr. P. Code needs to be excluded. If that time is excluded, then it cannot be said that the application that is filed by the present applicant before family court was barred by the limitation. In view of this, I find that the delay in filing application for setting aside ex parte judgment needs to be condoned and application for setting aside ex parte judg