The Judicial Magistrate has the inherent power to restore an application dismissed in default under Section 125 of the CrPC, as the proceedings under Chapter IX of the CrPC are not criminal in nature but are primarily of a civil nature.

A.L.BAHRI, J.

1. Jai Singh Sekhon J. vide his order dt. Oct. 11, 1988 referred the following question of law to the larger Bench :-

"Whether the Judicial Magistrate can restore the execution application of an order passed under Sec.125 of the Code which was dismissed in default of non-appearance of the petitioner on sufficient cause being shown."

2. The facts of the case, in brief, are as under :-

Smt. Kamla Devi filed an application under Sec.125 of the Code of Criminal Procedure for the grant of maintenance for herself as well as for her two minor children against her husband Mehma Singh. Vide order dt. Oct. 25, 1982, Judicial Magistrate 1st Class, Rajpura allowed maintenance at the rate of Rs. 100.00 per mensem to Smt. Kamla Devi and at the rate of Rs. 50.00 per mensem to each of the minor daughters Neelam and Guddi. The maintenance was payable with effect from the date of the institution of the application i.e. Sept. 23, 1980. On the failure of Mehma Singh to pay the maintenance as ordered, Smt. Kamla Devi moved an application for execution of the order of maintenance on Oct, 19, 1983. She claimed arrears of maintenance for the period Sept. 23, 1980 to Oct. 23, 1983. The said application for execution was dismissed in default by the Magistrate on May 19, 1984. Subsequently, the Judicial Magistrate restored the application dismissed in default vide his order dt. Aug. 4, 1984. In the meantime, Smt. Kamla Devi filed another application for execution for recovery of arrears of maintenance for the period March 1, 1984 to March 31, 1985. Both these applications were disposed of vide order dt. March 25, 1987, Mehma singh was ordered to undergo twelve months imprisonment subject to the condition that he would be released if he would make the payment of the amount of arrears earlier. A finding was also recorded that a sum of Rs. 10,000.00 was in arrears. Mehma Singh took up the matter in revision before the Additional Sessions, Judge, Patiala who vide his order dt. Aug. 27, 1987 set aside the order of the Judicial Magistrate restoring the application which was dismissed in default holding that the Judicial Magistrate had no jurisdiction to do so. Otherwise, the order passed on the second application, as noticed above, was maintained. Smt. Kamla Devi and her minor children filed the present. criminal revision petition in this Court against the order of the Additional Sessions Judge.

3 Chapter IX of the Cr. P.C. contains provisions for the grant of order for maintenance of wives, children and parents. This chapter consists of four Sections such as Sec.125 to 128. Sec.125 provides that a Magistrate of the first class may, on fulfillment of certain conditions, pass an order for the grant of maintenance to wives, children and parents. Sub-Sec. (3) of Sec.125 further provides that on failure of the person to comply with the order of the maintenance, the Magistrate could, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each months allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment is sooner made. Certain conditions are also mentioned therein where the Magistrate shall not pass such an order in execution. Section 126 of the Cr. P.C. provides for territorial jurisdiction of the Court where such an application under Sec.125 of the Code can be instituted. Sub-Sec. (2) of Sec.126 provides for evidence to be recorded in such proceedings in the presence of the person against whom an order for payment of maintenance is proposed to be made or where his personal attendance is dispensed with, in the presence of his pleader. It further provides that where such a person is avoiding appearance, an ex parte order can be passed. The Court was also given power to make such orders as to costs as may be deemed fit. Sec.127 of the Code provides