The period of limitation for setting aside an ex parte order of maintenance under the proviso to S. 126(2) of the Cr.P.C. commences from the date of the order, unless the person against whom the order is made can show that he had neither actual nor constructive knowledge of the order and that he acquired knowledge of the order only within three months preceding the date of the application.

This revision is preferred by Sukhirthammal challenging the legality of the order made in M.P. No. 3839/78 and M.P. No. 6062/80 in M.C. 283/78 on the file of the IV, Metropolitan Magistrate, Saidapet, Madras.

2. The brief facts necessary for the disposal of this revision are as follows : The petitioner filed M.C. 283/78 under S. 125, Cri. P.C., before the IV, Metropolitan Magistrate, Madras, against her husband, the respondent herein (Subramanian), seeking an order of maintenance for herself and her to minor children. On 29th June, 1978 an ex parte order was passed by the learned Magistrate directing payment of a sum of Rs. 250/- P.M. to the petitioner and Rs. 100/- P.M. to each of the minor children, all totalling a sum of Rs. 450/- per mensem. The respondent filed a petition in M.P. No. 3077/78 before the learned Magistrate for setting aside the ex parte order; but that petition was dismissed on 2-11-1978 due to the non-appearance of the respondent. Subsequently, another petition was filed in M. P. 3839/78 by the respondent on 4-11-1978 for setting aside the order, D/- 29-6-1978, stating that the respondent had not been served with notice in the maintenance petition to appear before the Court. On 23-2-1979, on the consent of the parties, the Magistrate passed the following order.

"The petitioner respondent herein agrees to pay the cost of Rs. 75/- to the respondent/petitioner by next hearing date." *

Below this order, the respondent Subramanian and his counsel have signed, stating that they have no objection. The respondent has made the following endorsement on the petition.

On 6-4-1979, the next hearing date, the petitioner refused to accept the sum of Rs. 75/-. Therefore, the Court directed the respondent to deposit the amount of Rs. 75/- in Court. Accordingly the amount was deposited by the respondent and on such deposit the petition was allowed on 6-4-1979.

3. Aggrieved by the said order of the Magistrate, the petitioner preferred a revision in Cr. R.C. 372/79 before this Court and same was allowed. The respondent took up the matter before the Supreme Court in S.L.P. (Cr.) No. 1286/80 and the Supreme Court passed the following order on 7-5-1980.

"Upon hearing counsel, the Court directed the learned Magistrate to dispose of the application filed by the petitioner for setting aside ex parte order, D/- June 29, 1978, after hearing both the sides and after allowing the petitioner to file a proper affidavit in support of the application for setting aside the ex parte order. The S.L.P. shall stand disposed of accordingly" *

4. In compliance with the said direction of the Supreme Court, the respondent filed M.P. No. 6062/80 on 30-8-1980, accompanied by an affidavit, seeking to set aside the ex parte order, raising the following grounds.

(1) He was not at all served with the summons to appear before the Magistrate in the maintenance proceedings;

(2) He came to know of the ex parte order passed against him only on receipt of a warrant from the execution Court on 16-9-1978; and.

(3) He filed an earlier petition to set aside the ex parte order on 28-11-1978 (sic) well within the period of three months from the date of his knowledge of the ex parte order.

5. The petitioner filed a counter inter alia submitting that the respondent wilfully avoided service of summons taken by her for the following three dates of adjournment, viz., 1-6-1978, 15-6-1978 and 29-6-1978 and hence the learned Magistrate passed the ex parte order on 29-6-1978, that the respondent was aware of the proceedings right from the date of institution thereof, that it is false to state that he came to know of the ex parte order only on receipt of the warrant from the execution Court, that the petitioner was not aware of the earlier petition mentioned by the respondent to have been filed on 28-9-1978 and that the petitioner was served on 18-12-1978 with a copy of the petition filed by her husband, the respondent, on 4-11-1978 (evidently referring to M.P. No. 3839/78