ex parte order,revision
Querist :
Anonymous
(Querist) 15 July 2011
This query is : Resolved
Hi friends,
Will some one of you will show appropriate law on the following proposition?
A final order of maintenance is passed u/s 125 crpc against H.Now three months have elapsed since.Advocate tells application for setting aside ex parte order is barred as more than 3 months have elapsed.He has filed revision petition before SJ.The latter has raised a question, "If there is bar of limitation u/s 126,revision is equally barred".My advocate argued "there is no limitation for filing revision under section 397".
PLZ provide appropriate guidance with judgments,if any, for & against the problem.
Regards !
Somnath mukherjee
(Expert) 15 July 2011
YOU CAN FILE A REVISION ALONG WITH APETITION FOR CONDONATION OF DELAY.FOR DETAILS CONTACT WITH ME
PROFESSOR ADVOCATE SOMNATH MUKHERJEE
MUKHERJEE ASSOCIATE
7A KIRAN SHANKAR ROY ROAD
ROOM NO-4. 2ND FLOOR
KOLKATA-700001
09874753359
Querist :
Anonymous
(Querist) 15 July 2011
Respected Professor,
I am highly obliged for your advice but what I have been convinced is that where a statute prescribes limitation for the doing of an act,Law of Limitation(Limitation Act) has no relevance & S.5 of the LA cannot be brought in aid for condonation of delay.It is also told that there is no provision in S.125,126 & 127 or other concomitant sections of the Code which speak about 'condonation of delay' if the period of THREE MONTHS has already lapsed.There may be some judgments to this effect but the general consensus is for 'not condoning the delay'.In this connection more assistance is needed,Sir.
Devajyoti Barman
(Expert) 15 July 2011
It is 30 days from the date of passing of order.
However in appropriate circumstances the delay beyond 30 days may be condoned if it is properly explained by a petition u/s 5 of the Limitations Act.
Querist :
Anonymous
(Querist) 16 July 2011
Thanx mr.Devjyoti for taking pains.But proviso to s.126(2) Cr.P.C reads as under:
'Provided that if.....and any order so made may be set aside for good cause shown on an application made within three months from the date thereof...",do mean that the limitation for seeking to set aside ex parte order id "THREE MONTHS".What are your views & how it is 30 DAYS.Also my qn is Whether the same period of Limitation applies if one chooses not to file application before the Magistrate & directly files Rev Petition after 3 months (or 30 days without application of condonation)Plz guide.
regards Sir.
Querist :
Anonymous
(Querist) 16 July 2011
Hi Xperts,
In this context my advocate has referred to two judgments viz; (i)Lognathan vs. Dhanlakshami,1996 Cr.l.J 1896 (Mad) & (ii)Balan Nair vs. Bhawani Amma,1987 Cr.L.J 399(FB).
Plz guide.
