G.B. Pattnaik, J.
1. The petitioner in this application challenges the legality of the order dated 18.3.1931 passed by the Judicial Magistrate, First Class, Narasinghpur, by which the learned Magistrate heard the application ex parte and granted maintenance to the tune of Rs. 200/- per month to the opposite party.
2. From the order-sheet of the Magistrate it appears that an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the 'Code' ) was filed on 4. 2. 1981 and the learned Magistrate directed for issue of summons fixing 2. 3. 1981 for filing objections. On 2. 3. 1981, be recorded in the order-sheet that the service return indicated that the opposite party refused to accept the summons and, therefore, the process-server served the same by affixture. This was treated to be sufficient and the learned Magistrate posted the matter to 13.3.1981 for hearing, On 13. 3. 1981, he examined the applicant-opposite party and passed the final order on 18.3.1981.
3. Mr. Kanungo appearing for the petitioner contends that the procedure prescribed in Section 126 of the Code for disposal of proceedings under Section 125 has not been followed and, therefore, the impugned order cannot be sustained. The learned counsel for the opposite party, however, contends that in view of the proviso to Sub-section (2) of Section 126 of the Code, there has been no illegality on the part of the learned Magistrate to dispose of the proceedings ex parte.
4. The proviso to Sub-section (2) of Section 126 of the Code authorises the Magistrate to proceed to hear and determine the case ex parte if he is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court. In the impugned order nor in the order dated 13. 3. 1981 nowhere the learned Magistrate has recorded such a finding. In the absence of any such recording by the learned Magistrate indicating that the petitioner is either wilfully avoiding service or is wilfully neglecting to attend the Court, the Magistrate would have no jurisdiction to dispose of the proceeding ex parte. That apart, the very same proviso also stipulates that if an application is made for setting aside the said ex parte order and good cause is shown, then the Court would be well within its jurisdiction to restore the matter and re-hear the same subject to such terms as to payment of costs. Though Mr. Kanungo concedes that no such application has been filed before the learned Magistrate, but he brings that provision to his aid in this Court for setting aside the ex parte order of the learned Magistrate. In the facts and circumstances of the case, I am satisfied that the impugned order of the learned Magistrate cannot be sustained in law. I would, therefore, set aside the order of the learned Magistrate dated 18.3.1981 subject to the condition that the petitioner pays Rs. 200/- (two hundred) as costs to the opposite party within a period of one month from today. In case the petitioner pays the costs within the stipulated time, then the learned Magistrate would start the proceedings from the stage where it was on 18.3.198I and try to dispose of the same as expeditiously as possible in accordance with law. In the event, however, the costs as directed ate not paid within the time stipulated, then the order of the learned Magistrate dated 18.3.1981 shall remain operative. It may be made clear that no further notice need be served on the petitioner and Mr. Kanungo appearing for the petitioner undertakes that the petitioner will enter appearance before the learned Magistrate by 24th of September, 1985.
This Criminal Miscellaneous Case is accordingly disposed of.