The starting point of limitation for filing a petition to set aside an ex parte order of maintenance is the date of knowledge of the order in cases where there has been fraudulent suppression of service of notice or non-service of notice on the person against whom the ex parte order of maintenance has been made.

JUDGMENT :

K.P. Mohapatra, J. - This revision is directed against the order passed by the learned Sub-Divisional Judicial Magistrate, Bhadrak, refusing to set aside the ex parte order of maintenance passed against the petitioner and in favour of the opposite party.

2. A few fact may be stated. The opposite party filed a petition u/s 125 of the Code of Criminal Procedure ('Code' for short) against the petitioner on 6-1-1983 in the court of the learned Sub-Divisional Judicial Magistrate, Bhadrak, alleging that while the latter was serving as Sub-Inspector of Police at Banta Police Station of Balasore district he married her in the month of Baishakh, 1970 according to the religious customs and thereafter they lived together and consummated the marriage. A daughter was also born of the wedlock on 15-6-1973. Some time later she came to her parent's house on a visit and as she could not return in time, the petitioner drove her out of the house. Since then she is living in her parent's house along with her daughter. She claimed maintenance of Rs. 300/- per month for herself, as well as for her daughter.

3. According to the orders passed by the learned Judicial Magistrate, it appears that notice was not served on the petitioner either through the police department or by registered post for some reason or other. On 19-11-1984, however, the following order was passed and the service of notice on the petitioner was treated as sufficient :

"19-11-84. x x

Later P. A. back with a report that O. P. refused to receive the postal notices. Hence the service is sufficient. Put up on the date fixed for ex parte order."

On 7-1-1985 the case was transferred to the Court of the learned Judicial Magistrate who posted the case to 13-2-1985 for hearing. On 13-2-1985 the impugned ex parte order of maintenance was passed.

4. On 11-1-1988 and 12-2-1988 the petitioner filed two petitions u/s 126(2), proviso of the Code for setting aside the ex parte order of maintenance. The earlier petition was dismissed as not pressed on 2-2-1988 because the petitioner had not taken any steps. In the second petition it was stated that although he was serving under the police department, notice according to Section 66 of the Code was not served on him. He did not also refuse to accept the notice sent by the court directly. He did not many the opposite party at all. For the first time he came to know of the impugned order on 2-1-1988 when his salary was attached. In support of the averments he filed an affidavit on 1-3-1988. No objection was filed by the opposite party.

5. At the time of hearing, evidence was not adduced by either of the parties. The postal cover along with the endorsement of refusal was neither proved nor admitted into evidence. Only arguments of the learned counsel appearing for the parties were heard, and the learned Judicial Magistrate held that as the petitioner refused to accept the notice sent by post intentionally and deliberately to harass the opposite party, service on him was considered to be sufficient. Therefore, there was no irregularity in passing the impugned ex parte order. Period of limitation according to the proviso to Section 126(2) of the Code commenced from the date of the impugned order and not from the date of knowledge, i.e., 2-1-1988 when attachment of salary was effected and so the petition wag barred by limitation. Accordingly, the learned Judicial Magistrate refused to set aside the impugned ex parte order.

6. Mr P.K. Dhal, learned counsel appearing for the petitioner raised the following contentions :

(1) Notice under the provisions of Section 66 of the Code was not served on the petitioner;

(2) Before proceeding to decide the case ex parte, the requirements of the proviso to Section 126(2) of the Code were not followed inasmuch as no effort was made that the petitioner wilfully avoided service and neglected to attend the Court; and

(3) In the facts and circumstances of the case, the period of limitation commenced from the date of