- (1.) G. Malaviya, J. This revision has been filed by the applicant-Gopal against the order dated 7-11-1985 whereby the Civil Judge, Varanasi allowed Criminal Revision No. 236 of 1984 of Shakuntala Devi against the order dated 14-4-1984 passed by the Sub-Divisional Magistrate, Varanasi (North), Varanasi for enforcement of the maintenance awarded by the SDM on 2-11-1979 on an application under Section 482 of the Code of Criminal Procedure, 1985.
(2.) IN the present case, it will suffice to mention that an application for grant of maintenance moved in the year 1971 was allowed by the SDM con cerned on 2-11-1979. The revision filed by Gopal, the husband, was dismissed by the Sessions Court. Therefore, the application was moved by Shakuntala Devi for enforcement of the order dated 2-11-1979, 31 items or movable pro perties were consequently attached. Father of the applicant, Nathu Seth filed a civil suit against the attachment of the movable properties. This suit was dismissed. The appellate court allowed the appeal of Nathu Seth but the High Court in second appeal filed by Shakuntala Devi on 24-11-1983 stayed the operation of the appellate court's order and restrained Nathu Seth from transferring the attached properties. Leaving all other details, suffice it to say that on 25-1-1984 Shakuntala Devi filed another application before the SDM, Varanasi (North) for enforcement of the maintenance amount calculated at the rate of Rs. 75 p. m. By this order dated 14-4-1984 the SDM (North), Varanasi rejected this application dated 25-1-1984 on the ground that this application should have been moved before the Judicial Magistrate and not before the SDM Shakuntala Devi preferred a revision and the revisional court placing reliance upon a Division Bench judgment of the High Court in case of Matoli v. Rukamani, 1978 ALJ 860, allowed the revision by holding that justice could not be interferred on technical ground. The learned Special Judge, Varanasi who allowed the revision noted the fact that although the High Court in the said case had accepted the proposition that the Executive Magistrate had no jurisdiction to entertain the application for enforcement of the order and such an application had to be presented before the Judicial Magistrate, had yet on the facts of that case found that it was not a fit case where the High Court should have interfered with the impugned order, with the result that the High Court had dismissed the petition which was moved before it under Section 482, Crpc. I have heard Sri Sankatha Rai, learned counsel for the applicant and Sri G. S. Chaturvedi, learned counsel appearing on behalf of the opposite party. Sri Sankatha Rai has again placed reliance on the judgment of Matoli v. Rukmani (supra), a perusal of the judgment leaves no room to doubt that the application which was moved by Shakuntala Devi before the Executive Magistrate on 25-1-1984 should have been made before the Judicial Magistrate I Class and the Executive Magistrate was right in his observation that he had no jurisdiction to entertain such an application. However, the revisional court also appears to be absolutely justified in its approach to the said case and thereafter in its allowing the revision by observing that the poor lady who had made an application for maintenance in the year 1971 and who was grant ed the maintenance was being deprived of the fruit of that order on the technical plea which the High Court had refused to grant in the case of Matoli to the applicant on identical ground even after the High Court had held that such an application was not maintainable. It would be relevant to quote para 13 of the judgment in Matoli's case which runs as follows: "the question, however, remains as to whether this is a fit case for the exercise of the discretionary powers vested in this court under Section 482 of the new Code. Discretionary and inherent powers vested in this Court under Section 482 of the new Code are to be exercised only to prevent abuse of the process of any court or otherwise to secure the ends of justice. Unless there has been a miscarriage of failure of justice, in our opinion, this court would not be justified in exercising its powers under Section 482 of the new Code. In exercise of powers under Section 439 of the old Code in Bisheshar v. Rex, 50 Cr LJ 322: 1948 ALJ 469, a Division Bench of this court declined to interfere with an order passed in complete disregard of a statutory provision of the Indian Penal Code since the interest of justice did not demand it. " It would thus be seen that in the case of Bisheshar v. Rex (supra) quoted in the said judgment, the High Court had declined to interfere in its revisional juris diction since the interest of justice did not demand it. I am satisfied that in this case also, although the application moved before the SDM, Varanasi (North) was not moved before the proper forum and although the Executive Magistrate had no jurisdiction to enforce the order, yet the application moved by Shakuntala Devi should not be thrown away and Shakuntala Devi be now required to move a fresh application before the Judicial Magistrate which may also involve the question of limitation being attracted and which in turn may defeat the object for which Shakuntala Devi had approached the viz. , court to get the maintenance from her husband.
(3.) I also cannot lose sight of the fact that in view of the facts and circumstances of this case, the Executive Magistrate had not passed any order for the enforcement of the maintenance amount consequently, while permitting the application dated 25-1-1984 to be treated as an application for the enforce ment of maintenance award, I direct that the said application shall now be transferred by the SDM, Varanasi (North) to the Judicial Magistrate having jurisdiction over the said area, who shall now proceed on the said application in accordance with law expeditiously. The SDM, Varanasi (North) shall transfer the said application to the Judicial Magistrate within two weeks from the date when the certified copy of this order is produced before him and the Judicial Magistrate concerned shall immediately take action over the said application by issuing notice to the parties concerned and by deciding the application thereafter, without any avoidable delay, in accordance with law. Subject to the observations made here in before this revision stands dismissed. The stay order granted on 6-2-1986 is vacated. .;