A Magistrate has the power to restore an application for maintenance dismissed for default, and a succeeding Magistrate has no jurisdiction to recall the order of restoration.

JUDGMENT :

Das, J. - This petition arise's out of a proceeding u/s 488, Code of Criminal Procedure.

2. The Petitioner is the wife of the opposite party. The parties are Christians and were married in the year 1951. The Petitioner filed a petition u/s 488, Code of Criminal Procedure (Misc. Case No. 20 of 1960) in the court of the Sub-divisional Magistrate, Cuttack, claiming maintenance with effect from 8-7-1960. After several adjournment the case was posted to 8-9-1962 for hearing. In the meanwhile, the opposite party filed a petition for adjournment under intimation to the Petitioner. This led the Petitioner not to be present on the date of hearing, and in the absence of the Petitioner the case was dismissed for default. Having come to know of the dismissal of the case as a result of the misrepresentation of the opposite party, the Petitioner on the very day filed a petition to recall the order of dismissal and the case was restored on the same day. On 15-12-1962 the opposite party again failed to appear and ex parte evidence was recorded on that day and the case stood adjourned to 15-2-1963 for further evidence. The opposite party made an application on that day contending that the Magistrate has no jurisdiction to pass an order of restoration on 8-9-1962. But the Magistrate did not pass any order on this petition and proceeded with the further evidence on 15-2-1963. In the meanwhile another Magistrate took over the case. On 26-3-1964 the opposite party again renewed his prayer before the new Magistrate who was in seisin of the case and by order dated 14-5-1904 the prayer of the opposite party was allowed and the order of restoration dated 8-9-196 was recalled with the result that the order of dismissal passed on that date was allowed to stand. It is against this order of the Magistrate recalling the order of restoration passed by his predecessor, this revision has been filed.

3. The main contention of Mrs. Padhi learned Counsel for the Petitioner was that it was open to the previous Magistrate to recall his own order of dismissal for default and to restore the case to file but it was not open to the succeeding Magistrate to rescind the order passed by his predecessor. She contended that once the proceedings were restored rightly or wrongly on 8-9-1962, the same could only be corrected in revision by the High Court and the learned Magistrate had no power to revise the order of his predecessor.

4. Mr. Rahenoma, learned Counsel for the opposite party contended that once a case is dismissed for default, the Magistrate has no inherent jurisdiction to restore the case to file and the succeeding Magistrate was justified in recalling such an order and in any event, it was open to the Petitioner to file a fresh application for maintenance and this Court should not exercise its revisional jurisdiction u/s 439 or the inherent jurisdiction u/s 561-A of the Code of Criminal Procedure.

5. From the facts stated above, it is clear that the case was posted for hearing to 8-9-19()2 on which date the Petitioner absented herself on the ground that the opposite party had already moved for an adjournment. But later on, when she learnt that her case had been dismissed for default she made an application for restoration which was allowed. The contention of the Petitioner was that it was open to the Magistrate to pass an order for restoration, inasmuch as it was merely an interlocutory order and in the interest of justice the Magistrate was competent to recall such an order.

6. It cannot be disputed that an order of dismissal for default is in the nature of an interlocutory order and cannot be said to be a 'judgment' within the meaning of Section 369, Code of Criminal Procedure and no finality had been given to such an order under any of the provisions of the said Code. In Hadibandhu Naik and Ors. v. Panchanan Sahu 26 C.L.T. 416, it was held that where an order does not amount to a 'judgment' within the meaning of Section 369, Code of Criminal Procedure a