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Monday, 27 May 2013

Limitation in case of recovery proceeding u/s 125(3) of crpc




  The order of the

Family Court in M.C.No.33/2004 was appealed against by the

petitioner before this Court and this Court dismissed that appeal

and confirmed the order of the Family Court only on 5.10.2010 It

is seen that on entertaining the appeal, this Court granted stay.

Noticing the stay order passed by this Court, the Family Court

closed the two earlier execution petitions which were obviously

filed within one       year of passage of the original order by the

Family Court. The submission of Mr. Rakesh before us is that the

order of stay passed by this Court was a conditional one and as

the petitioner failed to comply with the conditions, the order of

stay stood vacated automatically and nothing prevented           the

respondent from continuing with the execution.      According to us,

the petitioner should not be       and cannot be allowed to take

advantage of his own wrong of not complying with the conditions

imposed by this Court while granting him relief at his behest. At

any rate, the issue is squarely covered in favour of the respondent

by judgment of the Supreme Court in Shantha v. B.G.Shiva


Nanjappa (2005(4) SCC 468). It has been laid down therein that

the limitation period of one year provided in the proviso to

Section 125(3) Cr.P.C. is applicable only as regards the first

execution petition.     Moreover, we find that the two earlier

execution petitions were not finally decided.    They were only

closed for statistical purpose.     In either view of the matter,

Ext.P4 is a perfectly correct order.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
     &
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934

OP (FC).No. 1513 of 2011 (R)
----------------------------
(C.M.P.(Exe) No.996/2010 in MC.33/2004 of FAMILY COURT, MALAPPURAM



         SIVADASAN, S/O. RAMA PANICKER,

V

         E.K.SINDHU, D/O. E.K.PRABHAKARA
      Citation;2013 CR L J(NOC)161 kerala


       THIS OP (FAMILY COURT)  HAVING BEEN FINALLY HEARD  ON
18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

                                           
                       



                         


Pius C. Kuriakose, J.


            Under challenge in this Original Petition filed under

Article 277 of the Constitution filed by the petitioner who has

finally suffered an order at the hands of the Family Court and this

Court to pay maintenance to              the respondent,              his wife, is

Ext.P4 order passed by the Family Court, turning down his plea

that Execution Petition           No.996/2010 in which                   Ext.P4 is

passed by the Family Court is barred by limitation. The

respondent remains absent notwithstanding the service of notice

by this Court.     Mr. K.Rakesh, learned counsel for the petitioner,

relies on the proviso to Section 125(3) of the Code of Criminal

Procedure. Section 125(3) Cr.P.C. reads as follows:






                      "125(3) If any person so ordered fails without
                       sufficient cause to comply with the order,
                       any such Magistrate may, for every breach of
                       the order, issue a warrant    for levying the
                       amount due in the manner provided for
                       levying fines, and may sentence such person,
                       for the whole, or any part of each month's
                       allowance for the maintenance or the interim
                       maintenance and expenses of proceeding, as
                       the case may be, remaining unpaid after the
                       execution of the warrant, to imprisonment for
                       a term which may extend to one month or
                       until payment if sooner made:

                              Provided   that no warrant shall be
                       issued for the recovery of any amount due
                       under this section unless    application be
                       made to the Court to levy such amount
                       within a period of  one   year   from   the
                       date on which it became due:"

The argument was that the claim in the execution petition which

is for recovery for the maintenance due for a period of 65 months

from 24.2.2005 totalling an amount of Rs.48,750/- is barred by

limitation.    According to the learned counsel, the claim is per se

barred by limitation and hence, the E.P. should have been

rejected as barred by limitation.

          2. Having considered the submissions of the learned

counsel and having read through Ext.P4 and having analysed

Section 125(3) of the Code of Criminal Procedure, it is very clear


to our mind that the Family Court (Execution Court) was perfectly

justified in entertaining the execution petition.      The present

execution petition filed on 24.7.2010 is the third execution

petition which        the respondent filed after the   Family Court

passed the order of maintenance in her favour.      The order of the

Family Court in M.C.No.33/2004 was appealed against by the

petitioner before this Court and this Court dismissed that appeal

and confirmed the order of the Family Court only on 5.10.2010 It

is seen that on entertaining the appeal, this Court granted stay.

Noticing the stay order passed by this Court, the Family Court

closed the two earlier execution petitions which were obviously

filed within one       year of passage of the original order by the

Family Court. The submission of Mr. Rakesh before us is that the

order of stay passed by this Court was a conditional one and as

the petitioner failed to comply with the conditions, the order of

stay stood vacated automatically and nothing prevented           the

respondent from continuing with the execution.      According to us,

the petitioner should not be       and cannot be allowed to take

advantage of his own wrong of not complying with the conditions

imposed by this Court while granting him relief at his behest. At

any rate, the issue is squarely covered in favour of the respondent

by judgment of the Supreme Court in Shantha v. B.G.Shiva


Nanjappa (2005(4) SCC 468). It has been laid down therein that

the limitation period of one year provided in the proviso to

Section 125(3) Cr.P.C. is applicable only as regards the first

execution petition.     Moreover, we find that the two earlier

execution petitions were not finally decided.    They were only

closed for statistical purpose.     In either view of the matter,

Ext.P4 is a perfectly correct order.

             We dismiss this O.P.(FC).



                                           




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