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Basvarala Satteyya Vs. Malsoor and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1954CriLJ444
AppellantBasvarala Satteyya
RespondentMalsoor and ors.
Excerpt:
- .....articles 143 to 153 would show that they all pertain to applications under the civil procedure code, article 159 is a residuary article and states that applications for which no limitation has been prescribed in the schedule or under the civil procedure code three years limitation has been fixed from the date when the right to present an application accrues. the learned advocate for the petitioner contends that since tie limitation act is applicable to both the civil and criminal proceedings, this article should also be made applicable to this application.the simple answer to the objection of the learned advocate for the appellant is that article 159 is restricted to applications under the civil procedure code and must be interpreted ejusdem generis. the privy council has in -.....
Judgment:
ORDER

Jaganmohan Reddy, J.

1. This is a revision petition against the order of the learned Magistrate, passed on an application filed by the respondent in 1358 F under Section 411, Hyderabad Cr. P. C. In order to appreciate the contentions of the parties, it is necessary to state the facts briefly. The respondents Malsoor, Mohanamma and Kamalamma claimed maintenance under Section 411, Hyderabad Cr. P. C. alleging that they are the children of the petitioner. After, due enquiry, an order for maintenance at the rate of Rs. 10/- per month for the three children was passed in 1347 P., and maintenance was paid by the petitioner till 1350 F., when he filed a civil suit for a declaration that the respondents are not his children and that he is not responsible for the payment of maintenance. This litigation went upto the High Court which decided in 1357F., that the respondents were the children of the petitioner and that they were entitled to be maintained by him.

After this in 1358 F., respondents filed a petition for arrears of maintenance from 24th of Dal 1350 F., to 7th Shehrewar 1358 F., i.e., for 8 years and 7 months at the rate of Rs. 10/- per month, amounting to Rs. 1,035/-. The petitioner filed a written statement in 1359F., and later at the time of the arguments, he urged the following points, viz., (1) that the claim for arrears of maintenance was barred by limitation; (2) that the respondent petitioners had become majors - two girls being married and the boy earning his livelihood - as such they were not entitled to any maintenance and (3) that at any rate the amount of arrears is too high.

2. Upon these points, the learned Magistrate raised the issues and decided the first two points in favour of the respondents and with respect to the third point, he only allowed maintenance upto the date of the judgment of the High Court, because the respondents had not taken immediate action to recover the arrears after that judgment. With respect to the other point urged, namely, that they were self-supporting, the learned Magistrate came to the conclusion that on the evidence it was proved that they were supporting themselves, as such he cancelled the order of maintenance for future.

3. The learned Advocate for the petitioner argues that proviso (2) of Clause (3) of Section 488, Indian Criminal P. C. applies to this case and that the respondents could not enforce any claim for arrears of maintenance of more than one year. This contention has in my opinion been rightly disallowed by the lower court. The petition was presented under Section 411, Hyderabad Criminal Procedure Code in 1358F., when the Indian Criminal P. C. was not made applicable to the State and the proceedings were pending under the Hyderabad Cr. P. C. and not under the Indian Cr. P. C. as such there is no force in this contention. There is no limitation prescribed under the corresponding section of the Hyderabad Cr. P. C. and the only limitation is that which has been put by a decision of the High Court in - '21 Deccan LR 232 (A)', which says that where arrears are claimed for a long period, the Magistrate must use his discretion and see that the period for which arrears are granted is such that no unnecessary hardship may occur. The Magistrate applied this principle and allowed maintenance only upto the date of the High Court's decree.

The other contention, namely, that under Article 159, Hyderabad Limitation Act, (corresponding to Article 181, Indian Limitation Act) the provision relating to 3 years limitation regarding applications should be applied to the applications under Section 411 also, is not in my view tenable. A mere glance at the various articles under the heading 'application' commencing from Articles 143 to 153 would show that they all pertain to applications under the Civil Procedure Code, Article 159 is a residuary article and states that applications for which no limitation has been prescribed in the Schedule or under the Civil Procedure Code three years limitation has been fixed from the date when the right to present an application accrues. The learned Advocate for the petitioner contends that since tie Limitation Act is applicable to both the Civil and Criminal proceedings, this Article should also be made applicable to this application.

The simple answer to the objection of the learned Advocate for the appellant is that Article 159 is restricted to applications under the Civil Procedure Code and must be interpreted ejusdem generis. The Privy Council has in - 'Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.' AIR 1933 PC 63 (B), observed with respect to the interpretation of the corresponding Article in the Indian Limitation Act that 'a series of authorities commencing with - 'Bai Manektaai v. Manekji Kavasji 7 Bom 213 (C), has taken the view that Article 181 only relates to applications under the Code of Civil Procedure'.

That apart, before the enactment of the second proviso, it was left to the discretion of the court to say whether arrears for a long period should be collected by the process of the court. The Magistrate was to act according to the spirit of the Code and enforce the whole or any part of the arrears according to his discretion (vide - 'Mi Mya v. Nga Padon' 11 Cri LJ 79(2) (UB) (D). If Article 191 was applicable to such a case there was no question of the legislature coming in to amend Section 488. This reasoning would apply with equal force to the interpretation under Section 411, Hyderabad Cr P. C.

4. With respect to the other question, viz., whether the magistrate was wrong in not drawing proper conclusions from the evidence, in my view this contention also fails inasmuch as the Magistrate did direct his mind, to the evidence and come to the conclusion that since the respondents are self-supporting, 110 further maintenance need be paid. The order of cancellation always operates prospectively and not retrospectively. The question, therefore, as to when they were able to support themselves does not arise in this ease. The applicant in this case has had recourse to every possible steps to see that the respondents did not get the mere pittance of an amount ordered and went to the extent of litigating in a Civil Court for a declaration that they are not his children. There is, in my view, absolutely no warrant for interfering with the order of the lower Court.

5. In these circumstances, the revision petition is dismissed with costs.


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