( 1 ) BY this application dated 16. 3. 2006 under sections 397 and 401 of the code of Criminal Procedure challenge is made to the order dated 13. 2. 2006 passed by learned Judicial Magistrate, 4th Court, Hooghly (Sadar) holding thereby that the opposite party shall be entitled to recovery of the amount for the period from **** [15. 12. 2004 to 14,12. 2004] and also for the period from 2. 9. 2002 to 31. 1. 2004.

( 2 ) THE admitted facts are that an order for interim maintenance was passed for the sum of Rs. 600/- for the wife and another sum of Rs. 600/- for the minor son by the learned Magistrate on 31. 1. 2004 but the order was made effective from the date of the application under section 125 of the criminal Procedure Code which was on 2. 9. 2002.

( 3 ) THE opposite party filed an application for execution for recovery of the arrear on 14. 12. 2005 and the learned Magistrate held that she was entitled to recover the amount from 2. 9. 2002 to 31. 1. 2004 as also for the period from 15. 12. 2004 to 14. 12. 2005.

( 4 ) MRS. Goswami, learned Advocate appearing for the petitioner in this application submitted that under the first proviso to sub-section (3) of section 125 no warrant shall be issued for recovery of such amount due in this section unless an application be made before the Court to levy such amount within a period of one year from the date on which it becomes due. Mrs. Goswami, therefore, contended that the instant application for execution having been made beyond 22 months after the order was passed, the opposite party herein is not entitled to recover amount of maintenance for the period from 2. 9. 2002 to 31. 1. 2004.

( 5 ) MR. Tapas Ghosh, learned Advocate appearing for the opposite party in support the order of the learned Magistrate submitted that since the order was passed on 31. 1. 2004, the petitioner is entitled to the arrear amount of maintenance from 2. 9. 2002, although at the last leg of the argument Mr. Ghosh expressed inability to support some of the observations of the learned magistrate made in the impugned order.

( 6 ) HAVING heard the learned Advocate for the parties, it appears that the contention of Mrs. Goswami to that effect that the opposite party is not entitled to realization of amount of maintenance for the period from 2. 9. 2002 to 31. 1. 2004 is justified. Reading between the lines of the impugned judgment it could not be understood how the learned Magistrate would hold that the opposite party herein is entitled to the recovery of amount for the aforesaid period. Learned Magistrate's observation that the opposite party is entitled to the recovery of the amount of maintenance for the period from 15. 12. 2004 to 14. 12. 2005 is not in dispute because the claim for this period is well within time. Again it is not in dispute that the claim for the period from ****[15. 02. 2004 to 14. 12. 2004] is also barred by limitation. It appears that the learned Magistrate took recourse to the provision of section 431 of the criminal Procedure Code to hold that the order of maintenance can be realized with the aid of that section and the learned Magistrate referred to a decision of Madras High Court in Mani vs. Jaykumari, reported in 1998 cr. LJ 3708. Having gone through the judgment of the Madras High Court it does not appear that it has been held there that the amount barred by limitation is recoverable under section 431 of the Criminal Procedure Code. The observation of the Madras High Court that the learned Magistrate is empowered to pass an order directing for the payment of the past arrears even though those arrear would relate to the period for more than one year is under a different factual position.

( 7 ) ACCORDINGLY, the revisional application is allowed to the extent of realization of maintenance amount for the period from 2. 9. 2002 to 31. 01. 2004 as the said claim is barred by limitation on the application of the opposite party dated 14. 12. 2005.

( 8 ) A copy of the judgment shall be

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