Rahul Makol vs Shilpa Makol & Anr.
2012 Latest Caselaw 560 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl.MC No.310/2012 & Crl.MA 1119/2012 (stay)

                                                Date of Decision: 27.01.2012

Rahul Makol                                                ...... Petitioner
                           Through:      Mr. O.S. Gupta, Advocate

                                   Versus

Shilpa Makol & Anr.                                    ...... Respondent
                           Through:


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

Crl.MAs 1120-21/2012 (exemption)

1. Exemption allowed subject to all just exceptions.

Crl.MC No.310/2012 & Crl.MA 1119/2012 (stay)

1. This is a petition under Section 482 Cr.PC preferred by the petitioner for quashing of order dated 20.10.2010 passed by learned ADJ/Fast Track Court, Delhi in Criminal Revision No.103/2011.

2. The petitioner was aggrieved by the order dated 9.9.2011 of learned MM which was passed in Execution Petition 62/11 in connection with maintenance petition no.985/01/08. The interim maintenance order was passed by learned MM on 6.4.2010. In the execution petition under Section 125(3) Cr.PC, the objections were raised by the petitioner to the filing of

petition on account of delay of about 60 days. It was urged that as per the provisions of Section 125(3) Cr.PC, the limitation for filing of execution petition was one year, meaning thereby the limitation expired on 5.4.2011 and there being no application for condonation of delay, the delay of 60 days in filing the execution petition on 21.4.2011 could not have been condoned and consequently the execution petition was liable to be dismissed, being barred by limitation. A prayer is also made for refund of Rs.25,000/- which had been deposited by the petitioner as per order of the revisional court dated 6.8.2011 on the same ground that the execution petition was barred by time.

3. It was recorded by learned MM that the petition was filed on 8.8.2008 and as per the order dated 6.4.2010, a sum of Rs.25,000/- per month maintenance was awarded in favour of respondents from the date of filing of the petition till further orders. It was also mentioned in the said order that the arrears were to be cleared within six months. It was observed that since six months time was granted for making this payment, the arrears of maintenance of Rs.25,000/- per month from 8.8.2008 up till 7.4.2010 had not become due, but it became due after six months i.e. from 6.10.2010. It was held that since this amount became due from 6.10.2010, thus the execution petition filed on 21.4.2011 was within time with respect to the arrears for the period from 8.8.2008 to 7.4.2010. Learned MM, however, held that there was delay in filing the execution petition qua the maintenance amount for the period 8.4.2010 to 7.5.2010. It was because of the reason that as per order dated 6.4.2010, maintenance for the period 8.4.2010 to 7.5.2010 had become due on 10.4.2011, but the execution was filed on 21.4.2011 i.e. after expiry of one year. Thus, with regard to the execution petition for the period from 8.4.2010 to 7.5.2010, the execution petition was held to be not maintainable being

barred by time. It was also held that for the remaining period i.e. 8.5.2010 till 7.4.2011, the execution petition was well within limitation.

4. The petitioner challenged this order of learned MM by way of a revision petition before the learned ASJ which got dismissed vide the impugned order.

5. The impugned order is assailed mainly on the ground that the limitation for filing of the execution petition was one year after passing of the order of maintenance and the same having been filed after one year on 21.4.2011, was not maintainable.

6. I have heard learned counsel for the petitioner and perused the record including the impugned order passed by learned ASJ as also the order passed by learned MM.

7. Though the present petition has been filed under Section 482 Cr.PC, but having gone through the averments of the petition, it would be seen that it was nothing but a second revision that has been filed against the order of learned MM. It is settled law that the inherent powers of this court could not be exercised unless the case falls within the ambit of Section 482 Cr.PC. Having noted that the petitioner filed the first revision against the order of learned MM before the learned ASJ and having failed there, has chosen to file this second revision petition under the garb of section 482 Cr.P.C. Such a second revision petition was clearly barred under Section 397(3) Cr.PC. In the case of Kailash Verma vs. Punjab State Civil Supplies[2005 (2) SCC 571] while dealing with the question regarding second revision before the High Court after dismissal of the first one by the Sessions Court and powers of High Court under Section 482 Cr.PC, the Supreme Court held as under:

"5. In Krishnan and Anr. v. Krishnaveni and Anr. , this question came up for consideration. That was a case where the complaint was registered under Sections 420, 406 IPC. After inquiry, the police filed a report stating that the case was essentially of a civil nature and no offence was made out. The complainant brought the matter to the Superintendent of Police. As per the directions of the Superintendent of Police, the case was investigated by the Crime Branch and a fresh report was filed under Section 173 IPC. On receipt of the report, the Magistrate took cognizance of the offences under Sections 420 and 406 IPC. Thereupon, the appellant/accused filed an application for discharge and the accused was discharged by the Magistrate. The complainant filed a revision before the Sessions Court and the revision was dismissed. On further revision by the complainant, the High Court set aside the order of the Magistrate and directed the trial of the criminal case on merits. This was challenged on the ground that the second revision was not maintainable. A Bench consisting of three Judges of this Court held :

"'......though the revision before the High Court under Sub-section (1) of Section 397 is prohibited under Sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below."

Reliance was placed in that case on the decision in V.C. Shukla v. State though CBI ."

8. There are large number of judgments of the Supreme Court holding the view that it is only in case of serious miscarriage of justice or abuse of the process of the court or where mandatory provisions of law were not complied with and where the High Court feels that the inherent jurisdiction was to be exercised to correct the mistake committed by the trial court, that the extra ordinary inherent powers under Section 482 Cr.PC could be exercised.

9. In the case of Madhu Limaye v. The State of Maharashtra [(1977) 4 SCC 551], the Supreme Court laid down three principles with regard to the exercise of inherent powers of this Court as under:-

"(i) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(iii) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."

10. The similar issue was in the judgment of the Supreme Court in the case of Sooraj Devi Vs. Pyare Lal AIR 1981 SC 736 where it was held that inherent powers cannot be exercised for doing that which it is specifically prohibited by the Code. Nothing could be pointed out by learned counsel for the petitioner suggesting invoking of the inherent jurisdiction of this Court on the parameters as laid down by the Supreme Court as noted above in the case of Kailash Verma (supra). That being so, the petition under Section 482 Cr.P.C was apparently not maintainable and is liable to be dismissed on this ground alone.

11. The petition on merits as well is also not maintainable. As per the provisions of Section 125(3) Cr.PC execution petition was to be filed within a period of one year from the date on which the amount payable becomes due.

The words "payable and becomes due" are of worth consideration. In the present case, though the date of the order was 6.4.2010, the arrears in fact became payable/ due only after the expiry of period of six months from the date of the order. Since the leverage of six months for payment was given by the court to the petitioner, hence, the amount that was awarded became payable and due only after six months i.e. on 6.10.2010.

12. Learned counsel for the petitioner relied upon Takkalapally Laxmamma vs Takkalapally Rangaiah [1992 Crl.L.J 266]. Though the said judgment was not applicable to the facts of the present case and was on different issues, it was observed therein that it is from such date on which it became due that the period of one year as contemplated by proviso to Section 125(3) Cr.PC has to be reckoned. The expression as used in the proviso is "within a period of one year from the date on which it became due". It was held that the maintenance amount becomes due only after it is ascertained and fixed by the court and payable on the date later to such grant. The right to seek maintenance under Section 125(3) Cr.PC is quite distinct and different from the right to realize the maintenance amount under Section 125(3) Cr.PC after it became due.

13. Since the court itself had granted six months time to the petitioner for making payment of the awarded amount, same could not be said to be due or payable prior to the expiry of the six months. The respondent could not have filed execution for recovery of the maintenance amount immediately after passing of the order and before the expiry of six months. In fact, the execution petition would not have been maintainable being premature. The execution would become maintainable only in the event of the petitioner not making payment on the expiry of six months that was granted by the court. The six

months period expired on 6.10.2010 and it was within one year thereafter that the execution petition could be filed by the respondent. Hence, it can be said that the limitation period would not be reckoned from the date of passing of the order, but from the date when the awarded amount was in fact payable and became due.

14. Having regard to the foregoing facts and circumstances and the settled legal position, the execution petition filed on 21.4.2011 was apparently within time and was not barred by limitation. The instant petition has no merits and is hereby dismissed in limine without there being any orders as to costs.

M.L. MEHTA (JUDGE) January 27, 2012 rd