This is an appeal under section 28 of the Hindu Marriage Act, 1955 (for short the 'Act'), against the judgment and decree passed in Civil Suit No. 106-A/94, on 21.11.1994, by Second Addl. Judge to the Court of District Judge, Morena, whereby the suit of the plaintiff for dissolution of marriage under section 13 of the Act was dismissed.

The facts in brief are as under :

The appellant-husband instituted a suit under section 13 (1) (ia) of the Act for dissolution of the marriage on the ground of cruelty. After notice, the respondent-wife filed an application under section 24 of the Act for grant of interim alimony. The trial Court after hearing the parties, granted interim alimony at the rate of Rs. 700/- p.m. from the date of application, i.e. from 29.10.1993, but the husband did not deposit the amount. Prior to the institution of the suit the respondent-wife also instituted a proceeding under section 125 of the Cr.P.C. The Judicial Magistrate First Class trying the proceeding ordered grant of maintenance at the rate of Rs. 300/- per month for the wife and Rs. ISO/for the minor girl, but the plaintiff-husband did not deposit the amount of maintenance awarded by the J.M.F.C. nor the amount of interim alimony, but preferred a revision against the order of interim alimony before this Court, wherein this Court directed that if the appellant deposits arrears of the amount granted by the J.M.F.C. within a period of fifteen days, the operation of the impugned order shall remain stayed, but that order was also not complied with. On the other hand, the appellant filed an application for grant of time stating that because of his illness he could not deposit the amount. This prayer was refused and the suit of the plaintiff was dismissed for non-compliance of the order, hence this appeal.

The appeal is barred by 21 days, for that the appellant has moved an application to condone the delay assigning the reason for not preferring this appeal within the prescribed period of filing an appeal. The application is supported by an affidavit and the medical certificate issued from the Assistant Surgeon, District Hospital, Morena (MP). When the appeal came up for hearing on admission and for condonation of delay on 23.2.1995, the plaintiff-appellant's counsel was asked whether the appellant is ready to deposit the amount of maintenance as directed by the Court in revision, the appellant's counsel sought time, therefore, the case was listed on 24.2.1995 and then today, but neither the amount was deposited nor any statement made.

After hearing counsel for the parties, I am of the opinion that the application under section 5 of the Limitation Act, which is not only supported by the affidavit but also by the medical certificate, therefore, the delay in filing the appeal deserves to be condoned and is hereby condoned.

Now coming on the question of admission, I am of the opinion that the appeal has no merit. The appellant deliberately has not complied with the order, therefore, the stay order passed by this Court in revision did not remain in force, hence, in the circumstances, the trial Court rightly dismissed the suit of the appellant-plaintiff. The order passed was well within the jurisdiction of the Court, that is the Court exercised its jurisdiction under the inherent powers under section 151 of the Code of Civil Procedure, as the order of interim alimony pendente lite to the respondent-wife was deliberately not complied with. In three decisions of this Court reported in 1981 Vol (I) 124 (Lalu v. Salitabai), 1989 MPWN (I) 26 (Rakesh Kumar v. Smt. Laxmi Bai) and 1993 (I) 182 (Keshav Lal Gupta v. Smt. Maya Gupta) the view of this Court is that when the husband who is a defendant in a suit for dissolution of marriage, fails to comply the order of interim maintenance, the right to defend of such a husband may be closed, on the same anology, the suit for dissolution of marriage by a husband can be dismissed for non-compliance of the order of inte