PARITOSH DAS Vs. SMT. KALYANI DAS
HIGH COURT OF CALCUTTA
Smt. Kalyani Das
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Ashis Baran Mukherjee, J. -
(1.)The revisional application arises out of an order dated November 24, 1995 passed by the learned Sub -Divisional Judicial Magistrate, Contal in Misc. Execution Case No. 341 of 1993 and 111 of 1994. The application has been preferred under Sec. 482 Code of Criminal Procedure with the prayer for setting aside the said impugned order.
(2.)The short history of the case is that O.P. No. 1 claiming herself to be the wife of the Petitioner filed an application under Sec. 125 Code of Criminal Procedure claiming maintenance for herself and for her two children alleged to have been begotten out of the wed -lock. On September 15, 1993 an exparte order was passed against the Petitioner directing him to pay maintenance at the rate of Rs. 300 per month for O.P. No. 1 and at the rate of Rs. 200 per month for each of the minor sons. On October 5, 1993 after the Petitioner became aware of the exparte order preferred an application for setting aside the same. On January 21, 1994 the Magistrate passed a conditional order for setting aside the ex parte order, the condition being to deposit a sum of Ps.,500 at cost in favour of the O.P. No. 1. The present Petitioner preferred a revisional application before this Court being Criminal Revision No. 314 of 1994. On July 5, 1994 the revisional application was rejected by this Court when he preferred a special leave to appeal before the Supreme Court but it was rejected on February 20, 1995 O.P. No. 1 instituted two execution cases being Misc. Execution Case No. 341/93 and No. 1.11/94 in the meantime. On November 24, 1995 the Petitioner deposited Rs. 500 as cost in compliance of order dated November 21, 1994 in original Misc. Case No. 311/93. The said sum was accepted but by the impugned order he also rejected the written objection preferred by the present Petitioner and directed him to pay payment by January 4, 1996. It is contended that as soon as the cost of Rs. 500 was accepted it should be deemed sufficient compliance of the earlier order dated January 21, 1994 and the same automatically puts an end to the ex parte order of maintenance. It is contended that accordingly the subsequent direction to pay on the strength of the execution cases is anomalous.
(3.)I have heard the learned Advocate appearing for the Petitioner and also the learned Advocate appearing for the O.P. No. 1. The argument advanced on behalf of the Petitioner is that the Magistrate as soon as accepted the cost, the ex parte order of maintenance shall be deemed to have come to an end and as such there being no order of maintenance in the eye of law, there cannot be any question of continuance of execution cases.
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