JAIN , J. - (1.) THIS misc. petition u/s. 482 Cr. P. C. is directed against the order of learned Munsif and Judicial Magistrate, Salumber dt. 10. 5. 91 whereby the application filed by the non-petitioner dt. 6. 4. 91 for restoration was allowed.
(2.) MR. Vyas learned counsel for the petitioner submits that on 16. 3. 91 both the parties were not present and the application u/s. 125 Cr. P. C. was dismissed in default. The same was restored on 10. 5. 91 by the trial court on an application dt. 6. 4. 91 filed by the other party without giving any notice to the petitioner and thereafter the case was transferred to the Family Court, Udaipur on 24. 8. 91. He also submits that the petitioner came to know this fact only on 16. 12. 91. He further submits that the learned court below has also issued recovery warrant against the petitioner. He prays that the recovery warrant may also be set aside. On the other hand Mr. Gill, learned counsel for the non- petitioner submits that in execution of the recovery warrant dt. 4. 2. 92 some articles have already been recovered. This petition is pending since 23. 3. 92 and as agreed by the counsel for the parties, the same is heard today finally. I have heard learned counsel for the parties and perused the impugned orders. It is well settled preposition of law that in the Code of Criminal Procedure there in no provision to dismiss any case in default and the court is required to look into the merits of the case while deciding it and without looking into the merits of the case, no case can be dismissed, in view of the decisions of this Court randered in Kamal Singh Vs. State of Raj. (1) and Habu's case (2 ).
(3.) IN the instant case vide order dt. 4. 3. 90, the interim maintenance was granted @ Rs. 250/- per month to Smt. INder Kanwar and daughter vishnukanwar from the date of the application which has become final. On the application moved by the non-petitioner for getting the maintenance amount in terms of the order dt. 24. 3. 90, notices were issued for 28. 7. 90 and it was stated that there is likelihood of settlement between the parties. The case was fixed on 1. 12. 90 and thereafter on 16. 3. 91 the application was dismissed in default and not on merits. Under the circumstances, the subsequent order passed on the application for restoration deserves to be dismissed as the learned Magistrate has no power to recall his own order passed on 10. 5. 91 that too without hearing the other side, as admittedly the inherent powers vest in the High Court only. Therefore, the order dt. 4. 2. 92 issuing recovery warrant also deserves to be set aside. IN view of this and as agreed by the parties, the case is remanded back for deciding the application for execution of interim maintenance afresh. Mr. Gill submits that some articles have already been recovered in the execution of the recovery warrant. So far as the recovered articles is concerned, no order can be passed, which has not been disputed by Mr. Vyas and it agreed by the counsel for the parties that status qua as it exists today shall be maintained till any appropriate credit is passed by the trial court after hearing the parties. Under these circumstances, the impugned orders dt. 16. 3. 91 by which the application was dismissed in default, the order dt. 10. 5. 91 by which the restoration application was allowed without giving notice to the other side and the order dt. 4. 2. 92 whereby recovery warrant was issued are set aside. Both the parties are directed to appear before the court below on 16. 1. 1993. Thereafter the learned Munsif and Judicial Magistrate, Salumber will be free to pass appropriate order after hearing both the parties, according to law. In the result, this petition stands disposed of with the above observations. A copy of this order be sent to the learned Munsif and Judl. Magistrate, Salumber. .;