A second application for maintenance under Section 488, Criminal Procedure Code, is not barred by res judicata, and an agreement between the parties to live apart by mutual consent does not bar the wife's right to maintenance.

G.L.Chopra, J.

1. This petition for revision is directed against an order of Additional Sessions Judge, Ludhiana, maintaining that of Magistrate, 1st Class, Ludhiana, under Section 488, Criminal Procedure Code, granting allowance at the rate of Rs. 10/- per mensem to the respondent.

2. A long-standing dispute and consequent litigation is going on between Ramchand, the petitioner, and his wife, Jiwan Bai, They were married some 25 years ago and had two daughters born to them. Somewhere in the year 1940, Jiwan Bai was turned out by the petitioner. In 1942, she obtained an order under Section 488, Criminal Procedure Code, from a Magistrate at Lyallpur (now in Pakistan), allowing her maintenance at the rate of Rs. 10/- per month. The allowance was subsequently raised to Rs. 25/-. After the partition in 1947, she along with her parents migrated to India, and so did the petitioner. Jiwan Bai then presented an application under Section 488, Criminal Procedure Code, to the Additional District Magistrate, Ludhiana. On persuasion of the petitioner, it is stated, this application was withdrawn. On 24-11-953, she presented another application for maintenance under the same section in the Court of Mr. Jhangi Ram, Magistrate, First Class, Ludhiana. This application ended in a compromise, according to which Ram Chand undertook to pay Rs. 10/- per mensem as maintenance to his wife. Exhibit D. 1 is a copy of the composition deed. The application was, thereupon, filed. This too had no practical effect; nothing was, in fact, paid to the wife as maintenance. In the meantime, Ram Chand had married a second wife. Jiwan Bai then presented the present application on 5-5-1956, under Section 488, Criminal Procedure Code.

3. On behalf of the petitioner, it is contended (1) that the order of the Magistrate at Lyallpur granting maintenance to the wife stood as a bar to a fresh petition for the same purpose and (2) that a compromise having once been arrived at between the parties, the respondent ought to have got the terms thereof enforced through a civil Court. On the first point, it is submitted that the order for payment of allowance obtained under Section 488, Criminal Procedure Code, from the Magistrate at Lyallpur was still valid and enforceable in the Courts at Ludhiana. Jiwan Bai ought to have got that order executed, instead of presenting a fresh application for fixation and grant of the allowance. A second application for the purpose, it is contended, is barred by application of the general principles of the rule of res judicata.

4. It is correct that, as laid down by their Lordships of the Supreme Court in Kishori Lal v. Sm. Shanti Devi, AIR 1953 SC 441 (A), an order which was good and competent when it was made and which was passed by a tribunal which was domestic at the date of its making and which could, at that date, have been enforced in an Indian Court, does not lose its efficacy by reason of the partition, unless any specific bar to it is created by the Legislature. It follows that the order passed by the Magistrate at Lyallpur under Section 488, Criminal Procedure Code can even now be executed under Section 490 of the Code in the Court at Ludhiana. But that by itself does not mean that a fresh application under Section 488, Criminal Procedure Code, is not competent. The application would be barred only if there is any specific provision in this connection in the Code. The only provision which bars subsequent proceedings is contained in Section 403. That section bars the second trial of a person who has been convicted or acquitted of an offencc, and where the conviction or acquittal is still in force. A proceeding under Section 488, Criminal Procedure Code, cannot be regarded as a trial for an offence; nor does an order awarding allowance amount to conviction for an offence, within the meaning of the section. An "Offence" as defined by Section 4(O) of the Criminal Procedure Code, means "any act or omission made punishable by any l