JUDGMENT :

S.K.Mishra, J.

In this application under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as the ‘Code’ for brevity, the present petitioners being the petitioners in Crl. Misc. Case No.85 of 2015 of the court of learned S.D.J.M.(S), Cuttack, challenges the order passed by the said Court on 23.05.2015 rejecting the prayer of the petitioners to set aside the ex parte order passed on 26.02.2013 in Crl. Misc. Case No.393 of 2012, which has been filed by the sole opposite party (aggrieved person) under Section 12 of the Prevention of Women from Domestic Violence Act, 2005, hereinafter referred to as the ‘Act’ for brevity.

2. The facts are not disputed at this stage. Originally, the present opposite party-Jayanti Swain has preferred an application under Section 12 of the Act against her husband, father-in-law, step-mother-in-law and step-brother-in-law, who are present petitioners in this case. Her application was registered as Crl. Misc. Case No.393 of 2012. In that case, in pursuance of notice issued to the opposite parties, the present petitioners appeared on 01.11.2012. Subsequently, in spite of repeated adjournments at their instance, no show cause was filed. Finally on 06.02.2013, the opposite parties remained absent and no steps were taken on their behalf. Hence, the learned S.D.J.M.(S), Cuttack proceeded with the case ex parte and on 26.02.2013 final order was passed ex parte against the present petitioners, who are the opposite parties in that case and monthly maintenance of Rs.5,000/-was awarded in favour of the aggrieved person, who happens to be the opposite party in this case.

3. The present petitioners preferred appeal against that order to the learned Sessions Judge, Cuttack in Criminal Appeal No.59 of 2013. Learned Sessions Judge, Cuttack allowed the appeal in part and reduced the monthly maintenance awarded from Rs.5,000/-to Rs.4,000/-, but as far as the contentions of the petitioners to set aside the ex parte order is concerned,

learned Sessions Judge held as follows:

“On going through the impugned order I find that the in spite of taking several adjournments, the respondent did not file show cause before the trial court and remained absent from the Court, for which the trial court had no alternative, but to proceed with ex-parte hearing. The stand of the appellants that, they were not informed about the proceeding in the trial court by their counsel cannot be accepted as the appellant no.1 himself is an Advocate. So the ex-parte order cannot be set aside.”

4. Thereafter, the petitioner Prakash Sahoo and others have filed an application under Section 482 of the Cr.P.C., which was registered as Crl. Misc. Case No. 450 of 2015, wherein they have assailed the order passed by the learned S.D.J.M., (S), Cuttack without mentioning the fact that the same has been confirmed by the learned Sessions Judge, Cuttack in an appeal as referred above. However, while the matter came before this Court, the petitioners, in course of hearing, prays that the matter may be allowed to be withdrawn with a liberty to move the learned Magistrate for recalling/setting aside the ex parte order dated 08.01.2013 and the impugned order dated 26.02.2013.

5. Thereafter, the present petitioners filed Crl. Misc. Case No.85 of 2015 in the court of the learned S.D.J.M.(S), Cuttack purportedly under Order 9, Rule 13 of the Code of Civil Procedure, 1906, hereinafter referred to as the ‘Code’ for brevity, to set aside the ex parte order passed by that court on 26.02.2013. However, it is borne out from the records that after initiation of execution Crl. Misc. Case No. 393 of 2012 of the court of learned S.D.J.M. (S), Cuttack, the opposite party appeared in that case and also subsequently they have paid certain amount in part. While such execution petition was pending, they preferred Crl. Misc. Case No.244 of 2014 under Section 25 of the Act for revoking the order dated 26.02.2013 passed by the learned S.D.J.M.(S), Cuttack. L