The period of three months for setting aside an ex parte order under Section 488(6) of the CrPC is not absolute and can be extended under Section 5 of the Limitation Act, 1963, if the husband can show good cause for the delay.

ORDER :- On 7th November 1960, Meenakshi Ammal, the petitioner herein, obtained an ex parte order of maintenance against her husband Somasundarama Nadar under the proviso to Section 488 (6), Criminal P. C. directing the husband to pay her maintenance at the rate of Rs. 50 per month. She filed a petition in 1966 for enforcement of that order, and collected a sum of Rs. 600 on 14-1-1967. Thereupon on 16-1-1967 the husband filed a petition M. P. No. 37 of 1967 to set aside the ex parte order. He also filed M. P. 38 of 1967 under Section 5 of the Limitation Act 1963 since the application for setting aside the ex parte order had normally to be filed within three months from 7-11-1960, the date of the order. The wife filed M. P. 139 of 1967 by way of objection to M. P. 37 and 38 of 1967.

2. The learned District Magistrate passed an order on 14-7-1967 setting aside the ex parte order dated 7-11-1960 on the ground that the procedure relating to the service of summons had not been observed by the Magistrate before he passed the order dated 7-11-1960. Briefly speaking, he pointed out that there was an endorsement that notice sent by registered post was refused by the husband. Later service by affixture to the residence of the husband was attempted. The notice was returned with an endorsement that there was no such residence and that

the husband was doing business in Dindigul and Karaikudi. But no attempt was made to serve summons on him at those places. The proviso to Section 488 (6), Criminal P. C. says :-

"Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof".

3. The learned District Magistrate expressed the view that the above facts furnished good ground for setting aside the ex parte order. The learned District Magistrate pointed out that, even though the husband filed the petition more than three months after 7-11-1960 the bar of limitation would not apply because the order dated 7-11-1960 had not been validly passed. The learned District Magistrate followed the decision of the Kerala High Court in Raghavan Unnithan v. Vijayamma, 1963 Mad LJ Cri 597 and that of the Mysore High Court in the State v. Bhimrao, 1964 Mad LJ Cri 110 : (AIR 1963 Mys 239). In this view he considered it unnecessary to consider the application under Section

5 of the Limitation Act. Against the said order the wife has filed the present revision petition. The husband allowed this revision petition to proceed ex parte.

4. As at present advised and with great respect to the learned Judges of the Kerala High Court, and Mysore High Court, I am not inclined to accept their view. It seems to me that while the fact that the procedure prescribed for service of summons in Sections 68 to 71, Criminal P. C. has not been followed on the prior occasion, may be a good ground for allowing the application to set aside the ex parte order, the mere non-observance of the proper procedure would not make the ex parte order invalid and entirely liable to be ignored so as to say that the bar of

limitation of three months would not apply at all. But the present case can be disposed of otherwise.

5. In the first place, the question arises whether the period of three months for the application to set aside the ex parte order is absolute. There is no doubt a decision of Somasundaram, J. in A. S. Govindan v. Jayammal, 1950 Mad WN (Civil) 221 (2) : (AIR 1950 Mad 153) that the period is absolute even though the husband may not have knowledge of the order within three months. That sounds rather inequitable to the husband and on that question it has to be considered whether the decision of Somasundaram, J. can be good law after the decision of their Lordships of the Supreme Court in Harischandra v. Dy. Land Acquisition Officer, AIR 196