This is a reference by civil and Sessions Judge, Lucknow, recommending that the order dated 28-11-1969 passed by Sri S. M. Abbas, a Magistrate of the First Class, Lucknow, in Criminal Case No. 51 of 1969 under S. 488, Criminal P.C. be modified to be effective only for a sum of Rs. 480/-. Criminal Revision No. 184 of 1971 has been filed by Smt. Savitri Devi opposing the reference.

2. The relevant facts giving rise to this reference are that Smt. Savitri Devi filed an application under Sec. 488 of the Code of Criminal Procedure for maintenance against her husband Shanker Deo Nigam, and on 19-12-1966 the Magistrate directed Shankar Deo Nigam to pay the allowance at the rate of Rs. 40/- per mensem effective from the date of the order. On 26-2-1969 Smt. Savitri Devi applied for execution of the order in the Court of Sri S. M. Abbas that her husband had paid her nothing towards her maintenance since the date of the order and prayed that the order for maintenance be enforced against her husband. She had claimed a sum of Rupees 1,040/- towards maintenance and Rs. 100/- as costs of the case.

3. This application was contested by Shankar Deo Nigam and his objection was two fold : It was alleged firstly that he and Smt. Savitri Devi had compromised the matter between them since the order granting maintenance and after that compromise the maintenance order passed against him had spent itself and had become non-existent and secondly that the order was not enforcible as barred by limitation.

4. The defence of Shankar Deo Nigam did not find favour with the learned Magistrate who directed him to pay a sum of Rs. 1,180/-, though it should have been Rs. 1,140/-, to Smt. Savitri Devi towards the allowance for her maintenance for the period 19-12-1966 to 19-2-1969. Aggrieved by this order he filed a revision in the Court of the Sessions Judge which was transferred to the Civil and Sessions Judge who by his order dated 20-5-1971 held that Smt. Savitri Devi was entitled to a sum of Rs. 480/- only, the amount due for maintenance for the period of twelve months preceding the date of application for enforcement. He accordingly made a reference to this Court for modifying the order to the extent indicated above.

5. Aggrieved by this order Smt. Savitri Devi has also filed a revision opposing the order of reference passed by the Civil and Sessions Judge and for maintaining the order of the learned Magistrate.

6. I have heard the learned counsel for the parties and in my opinion the reference is misconceived and should be rejected and the revision filed by Smt. Savitri Devi be allowed. In her application dated 26-2-1969 Smt. Savitri Devi has claimed a sum of Rs. 1,040/- as arrears of maintenance from 19-12-1966 to 19-2-1969 and Rs. 100/- as costs of the case awarded to her by Sri Sadhu Singh, Magistrate First Class, Lucknow. The first execution application was moved by Smt. Savitri Devi on 10-2-1967. Her husband filed a revision against the order of the Magistrate dated 19-12-1966 and got the proceedings stayed. The revision was dismissed by the Sessions Judge and be filed a revision against that order in this Court which was also dismissed. The second application for execution was made on 22-12-1967. The fate of that application is not clear from the record but it is immaterial because a third application for execution was made on 5-1-1968, i.e. within twelve months from the first execution application. The third execution application was compromised on 26-6-1968 and the proceedings were dropped. Again she gave an application for execution of the order on 14-8-1968. This application was dismissed for default and finally she moved an application on 26-2-1969. It will thus appear that Smt. Savitri Devi has been making applications for recovery of arrears of maintenance within a year of each other from 19-12-1966. It appears that the learned Sessions Judge has allowed himself to fall in error by misreading proviso 2 to sub-section (3) of Section 488