Manthena Hari Venkata Bapi Raju, ... vs Manthena Bramaramba, ...
2022 Latest Caselaw 1588 AP

             HON'BLE SRI JUSTICE B.KRISHNA MOHAN

           CRIMINAL REVISION CASE No.1042 OF 2017

ORDER :

Heard the learned counsel for the petitioners and the

learned counsel for the 1st respondent and the learned counsel for

the 2nd respondent.

2. This Criminal Revision Case is filed against the order in

Criminal Appeal No.102 of 2015 on the file of Sessions Judge,

Mahila Court, Vijayawada dated 30.12.2016 confirming the order

passed in Crl.M.P.No.954 of 2013 in D.V.C. No.29 of 2011 on the

file of I Additional Chief Metropolitan Magistrate, Vijayawada

dated 04.03.2014 dismissing the application to set aside the ex

parte order passed in D.V.C.No.29 of 2011.

3. The petitioners herein are the appellants in appeal and the

petitioners before the trial Court in Crl.M.P., and the respondents

in the D.V.C., before the trial Court. The 1st respondent herein is

the wife of the 1st petitioner and the respondent in the Crl.M.P.,

before the trial Court and the 1st petitioner in the D.V.C., before

the trial Court.

4. The 1st respondent along with her children filed D.V.C.No.29

of 2011 on the file of I Additional Chief Metropolitan Magistrate,

Vijayawada at that time seeking protection order under Sections

18, 19, 20 and 22 of the Protection of Women from Domestic

Violence Act, 2005, in which the protection officer moved the trial

Court by filing this Domestic Violence Petition on behalf of the

1st respondent herein and her minor children for Residential order,

Monitory relief and other reliefs. Considering the application,

the trial Court directed the respondents therein i.e., the

petitioners herein to return Rs.4,00,000/- and 15 sovereigns of

gold, furniture Fridge, Watching Machine, Colour T.V., and

directed to return Rs.25,000/- receipts and certificates and other

documents and 10 sovereigns of gold and ordered maintenance of

Rs.4,000/- for the 1st petitioner therein i.e., the 1st respondent

herein and Rs.4,000/- each per month to the minor children of the

1st respondent herein vide order dated 04.06.2012. Treating it as

an ex parte order and aggrieved by the same, the respondents

therein i.e., the petitioners herein filed Crl.M.P.No.954 of 2013 in

D.V.C.No.29 of 2011 on the file of I Additional Chief Metropolitan

Magistrate, Vijayawada seeking to set aside the said ex parte

order dated 04.06.2012. But the same was dismissed on the

ground that it is not maintainable and the course open to them is

to prefer an appeal against the said order. Aggrieved by the

same, they further challenged the said order dated 04.03.2014 in

Crl. Appeal No.102 of 2015 on the file of Sessions Judge, Mahila

Court, Vijayawada and the said appeal was also dismissed by the

said court vide its Judgment dated 30.12.2016 by confirming the

order of the trial Court passed in Crl.M.P.No.954 of 2013 in

D.V.C.No.29 of 2011 of the trial Court dated 04.03.2014. Against

which, the present Criminal Revision Case was filed.

5. The counsel for the petitioners submits that since the order

of the trial Court dated 04.06.2012 is an ex parte order, they filed

an application seeking to set aside the same and on dismissal of

the same, they preferred an appeal and as it was dismissed, the

present revision was filed. But on the other hand, the counsel

appearing for the 1st respondent submits that both the Courts

below rightly held that the application to set aside an ex parte

order is not maintainable and it is only appealable in nature under

the law.

6. In view of the above said facts and circumstances, as both

the courts below rightly held with regard to the maintainability of

the application to set aside the order dated 04.06.2012, this court

is not inclined to interfere with the orders of the Courts below.

7. In view of the settled legal position, the petitioners herein

are directed to prefer an appeal against the order of the trial

Court dated 04.06.2012 by way of an appeal and on filing the

same, the lower appellate Court shall consider the same on its

own merits uninfluenced by the earlier orders passed by the

Courts below and insofar as the limitation aspect is concerned, the

time taken between the date of filing of the above said

application to set aside the order dated 04.06.2012 of the trial

Court and the date of receiving of the order in this Criminal

Revision Case shall be excluded for the purpose of computation of

delay if any in presentation of the said criminal appeal.

8. Accordingly, the liberty is given to the petitioners to prefer

an appeal in accordance with law before the lower appellate

Court against the order of the trial Court dated 04.06.2012 within

two (02) weeks from the date of receipt of this order and the

lower appellate Court can consider the interim relief pending

appeal before it as per law. Till then the order of the trial Court

dated 04.06.2012 is stayed for a period of four (04) weeks only

except with regard to the payment of maintenance amount per

month to the 1st respondent and her children.

9. In the result, the Criminal Revision Case is disposed of.

As a sequel, miscellaneous petitions, if any pending in this case,

shall stand closed.

________________________ JUSTICE B. KRISHNA MOHAN

Dt. 31-03-2022

Note: Furnish Order copy in two days B/o.

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