An application for recovery of maintenance dues under S. 125(3) of the Criminal P.C. is barred by limitation if it is not made within one year next preceding the date of application.

JUDGEMENT

Petitioner No. 1 is the wife and petitioner No. 2 is the daughter of opposite party. On ground of neglect by the opposite party, the petitioners filed an application under S.125 of the Criminal. P.C. in the court of the Sub-Divisional Judicial Magistrate, Balasore, which was registered as Misc. Case No. 128 of 1972. By order dated 7-11-1973, the petitioner No. 1 was granted maintenance of Rs. 20/- per month and petitioner No. 2, Rs. 10/-.

2. As the opposite party committed default in payment, the petitioners filed Misc. Case No. 392 of 1975 under Section 488(3) of the Criminal P.C. 1898, corresponding to S.125(3) of the new Code for dues of 18 months from the date of order. Order having been passed against the opposite party, a revision was carried by him to the Sessions Judge and being unsuccessful there, he filed a writ petition before this Court in O. J. C. No. 216 of 1977. It was contended therein that who opposite party having been adjudged insolvent subsequent to the proceeding, his liability did not exist and stood wiped out and having regard to the period of one year fixed under the proviso to Sub-Sec. (3) of Sec. 488, within which the application should be made (calculating from the date on which the amount became. due), no action could be taken against the opposite party for the dues of the period exceeding one year. This Court held (on the question of insolvency) :- "Mr. Murty for the petitioner contends that subsequent to the proceedings, petitioner pas been adjudged insolvent. There is no material on record to support this stand. We, are, therefore, not prepared to go into this question though we agree with Mr. Murty that if there be any adjudication of insolvency, the liability would be wiped out. ......"

On the question whether a part of the liability was barred, this Court held :-

"...... the learned Magistrate had no justification to treat the period of default as 18 months prior to the making of the application. There seems to be force in this submission. The proceeding should have, therefore, been taken for a period of one year's default i.e. for Rs. 360/- in all."

3. Thereafter, on 20-11-79, the petitioners filed three petitions under Section 125(3) of the Criminal P.C. 1974, for realisation of maintenance due for the periods from 1-9-75 to 1-9-76; from 1-9-76 to 1-9-1977 and from 1-9-77 to 1-9-78. These applications were registered as Misc. Cases Nos. 531, 530 and 528 of 1979 respectively. The opposite party appeared in the said case on 14-3-1980 and made a prayer for permission to pay the arrears by instalments and the Magistrate granted his prayer, Sometime later, the opposite party filed objection contending that in view of the fact that he had been adjudged insolvent, his liability ceased to exist and was wiped out and moreover, the applications were barred, the dues being of a period beyond one year next preceding the date of the filing of the application. His contention was that the applications having been filed on 20-11-1979, dues for any period before 20-11-1978 was not realisable. The learned Magistrate having rejected the petitions, the petitioners filed three revisions (Criminal Revisions Nos. 437 to 439 of 1980) arising out of the three miscellaneous cases.

The point involved being the same, the three revisions have been heard analogously.

4. Mr. Sutar, learned counsel for the petitioners, submitted that the opposite party having agreed to pay the dues by instalments and an order having been passed on the basis of his concession, his objection at a later stage on the question of limitation was not maintainable.

5. Mr. D.S. Nanda, learned counsel for the opposite party, submits that the dues being for a period beyond one year next preceding the date of application, the application in each of the cases were not maintainable. The three applications which relate to the period from 1-9-1975 to 1-9-1978 were filed on 20-11-1979. So, the dues did not relate to a period within one year next precedi