Padmini Jesudurai, J. - (1.) THE petitioner, against whom an ex -parte order of maintenance has been passed in favour of his mother aged 70, has filed the present revision challenging the order of the learned Magistrate, both on the ground setting him ex -parte, as well as his liability to pay maintenance and the quantum.
(2.) THE respondent is the widowed mother of the petitioner. She filed M.C. No. 33 of 1985 under Section 125, Cr. P.C. in the Court of the Judicial First Class Magistrate No. 1, vellore, claiming a monthly maintenance of Rs. 500/ - on the averment that she was widowed while young and with great difficulty she had brought up the Petitioner and her other sons, got them married in life and settled her properties on them. About six months prior to the filing of the petition she was driven -out of their house by the petitioner and another son Sekar, who was initially shown respondent in the petition. The respondent had no means to maintain herself and was too old to earn a living. The petitioner was a Government Servant drawing more than Rs. 700/ - per month. He had failed to maintain the respondent. The petition was taken on file on 18 -5 -1985, and on 2 -1 -1986 notice by Registered Post with Acknowledgement Due was ordered to the petitioner and to the son Sekar for the hearing on 17 -1 -1986. The petitioner was Served, while the notice to the son Sekar was returned unserved. On 17 -1 -1986 the petitioner did not appear in Court, and non -bailable warrant was issued to secure his attendance. Fresh notice to Sekar was ordered for the subsequent hearings but all the notices were returned unserved. On 23 -4 -86, the respondent filed a memo that since her son Sekar was paying her more than Rs. 100/ - per month for maintenance, she was giving him up in the present proceedings. Since the non -bailable warrant against the petitioner continued to be pending, on 7.6.86, publication in a Local Tamil Daily was ordered and on 7 -8 -1986 the publications was made in the Tamil Daily 'Malai Murasu' for the hearing on 13 -8 -1986. On 13 -8 -1986, the petitioner did not appear and he was set ex -parte and evidence was taken. On 19 -8 -1986 the impugned order was passed.
(3.) INITIALLY Thiru Gopinath, Learned counsel for the petitioner would urge that though proviso (2) to Section 126 of the Criminal Procedure Code (the Code for Short) enables the petitioner to file an application before the Magistrate to have the ex -parte order set aside, it was open to the petitioner to forego that remedy and file a revision under Section 397, Cr.P.C. wherein also, he would challenge the correctness of the order, in so far as it related to setting him ex -parte. Reliance was placed upon a decision of a learned Judge of this Court in Muthusamy v. Kataiarasi and another, 1989 L.W. Crl. 168 and also to a Judgment of a Full Bench of the Kerala High Court in Balan Nair v. Bavani Ammu and another, 1987 Crl. L.J. 399 Ker -FB wherein also, the Court held that a person against whom an ex -parte order under Section 125 Cr. P.C. has been made, could challenge the legality of setting him ex -parte, either by an application under Sec. 126 or in a revision under Section 397. Reference was also made to the analogous provision in the Civil Procedure Code and in particular to a judgment of a Full Bench of this Court in Krishna Ayyar v. Kuppan Ayyangar, I.L.R. 30 Mad 54 wherein it was held that when a suit was decreed ex -parte, the appellate Court to which an appeal from the decree was preferred under Section 540 of the Code of Civil Procedure (Act 14 of 1882), has jurisdiction to reverse the decree of the lower Court on the ground that such Court was wrong in proceeding to decide the suit ex -parte and the appellate Court could remand the suit for rehearing.;