1984 Supreme(All) 255

IN THE HIGH COURT OF ALLAHABAD
K. C. Agarwal, J.
KAMLA, APPLICANT - Appellant
Versus
R.L.BILGAINYAN - Respondents
Criminal Revision 1030 Of 1982
Decided On : 05/07/1984

Payment of costs under the proviso to section 126 (2), Criminal Procedure Code is a condition precedent for availing the order setting aside the ex-parte judgment given under Section 125, Criminal Procedure Code.

Headnote:

MAINTENANCE - SECTION 126(2) - PROVISO - SETTING ASIDE EX-PARTE ORDER - PAYMENT OF COSTS - CONDITION PRECEDENT - NON-PAYMENT - EFFECT - SECTION 421 - APPLICABILITY - INHERENT POWER OF COURT - EXTENSION OF TIME - POWER TO EXTEND TIME - ANCILLARY AND INCIDENTAL TO MAIN POWER OF AWARDING COSTS - INTEREST OF JUSTICE - DISCRETION OF COURT.

Fact of the Case:

The applicant filed an application under section 115, Criminal Procedure Code against the opposite party No. 1 claiming a sum of Rs. 7501-per month as maintenance for herself and her daughter Puja. This application was partly allowed on November, 27, 1980, and the Magistrate fixed Rs. 350/-as maintenance for the applicant and her daughter. When the distress warrant was issued for recovery of the maintenance the opposite party on September 5, 1981 moved on application under section 126 (2), Criminal Procedure Code for setting aside the ex-parte order dated 27. 11. 1980. The application was contested by the applicant. On 4. 2. 1981 the Magistrate set aside the order on payment of Rs. 150/- as costs to the applicant. It appears that costs were not paid to the applicant within time. The opposite party thereafter moved an application on 17th February, 1982 for condo nation of two days delay in paying costs awarded by the Magistrate. The Magistrate rejected the application by the order- dated 5. 3. 1982 which had been challenged before the Sessions Judge in revision out of which the present proceedings arise.

Finding of the Court:

The Magistrate has held that as the non-compliance with the order setting aside the ex-parte order dated 27. 11. 1980 has become final due to non-payment of costs within the time stipulated for its payment he has no jurisdiction to recall the same.

Issues: 1. Whether the order dated 27. 11. 1980 by which the application of the applicant fat payment of maintenance was allowed was an ex-parte order? 2. Whether the Magistrate was justified in setting aside the ex-parte order dated 27. 11. 1980 on payment of costs? 3. Whether the Magistrate could extend the time for payment of cost which had been made by the opposite party No. 1 within the time allowed by the Magistrate?

Ratio Decidendi: 1. The order dated 27. 11. 1980 by which the application of the applicant fat payment of maintenance was allowed was passed behind the back of the opposite party No. 1 and without hearing him. Therefore, it was nothing else but an ex-parte order. 2. Under the proviso to sub-section (2) of section 126, Criminal Procedure Code if the Magistrate is satisfied that the person against whom an order for maintenance has been passed exparte, was absent on account of good cause shown to him, he can set aside the same Subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may thing just and proper. 3. The power to impose cost on the court has been given to a court for making payment of compensation. The interpretation canvassed by the learned counsel for the opposite party. is that the amount could be realised only as fine is not acceptable on account of the language of the proviso not permitting the same. The language apart, the intention also of the legislature could not be that a party remaining obsent may get he ex-parte order set aside and thereafter harass the applicant who has applied for maintenance under section 125. By executing order of costs as provided by Section 421, Criminal Procedure Code the intention is that if costs are paid the proceedings under Section 125, Criminal Procedure Code could be gone into and the rights of the parties could be decided on merits. The proviso is that on payments of costs written statement could be filed. The purpose of the legislature can be achieve only if interpretation is that cost is to be paid in cash. 4. The power to extend time for depositing the amount is ancillary and incidental to the main power of awarding cost by the proviso to sub-section (2) of section 126, Criminal Procedure Code. For in a given case the Magistrate found that interest of Justice required extension of time to pay the costs awarded it can do so in case an application for extention of time is made within the time or beyond that would be a discretion of the court to be exercised judicially.

Final Decision: The revision fails and is dismissed. Stay order dated 9. 6. 1982 is discharged.