T.P. Mukherji, J.
1. The husband in a proceeding under Section 488 Cr. P. C. obtained this Rule against the order of the learned Magistrate rejecting his prayer made under the proviso to Section 488(6) of the Code for setting aside an ex parte order for payment of a maintenance allowance of Rs. 50/- per month to his wife.
2. The materials on record show that the petitioner was served with notice of his wife's application under Section 488 Cr. P. C. and that he also appeared in court and filed his written statement, but thereafter did not appear. The proceeding ended in an ex parte order directing payment of maintenance allowance as stated above. Six months thereafter the petitioner appeared in court and applied under the proviso to Sec, 488(6) for setting aside the ex parte order. The learned Magistrate refused to entertain the prayer on the ground of limitation.
3. The learned Advocate appearing in support of the petitioner contends that Section 5 of the Limitation Act would apply to the case and that the learned Magistrate fell into an error in finding that Section 5 of the Limitation Act would not apply and that the application was barred by limitation.
4. Section 488(6) of the Code requires that evidence in connection with a proceeding under the section should be taken in presence of the other party or his pleader. The proviso appended to the clause says, however, that if the Magistrate is satisfied that the other party is wilfully avoiding service or wilfully neglecting to attend the court he may proceed to hear and determine the case ex parte. It is an order passed ex parte under the above circumstances which is liable to be set aside for good cause shown on an application made within three months from the date thereof. The question is whether the second part of the proviso which refers to setting aside of the ex parte order is at all attracted to the facts of the present case.
5. As I have already stated the present petitioner was served with notice of the proceeding. So, there was no question of his wilfully avoiding service. He attended court and also filed his written statement as is admitted in paragraph 3 of his present application. Thus, there was no question of his wilfully neglecting to attend the court either. Thereafter the present petitioner did not appear personally but his lawyer appeared on some occasions before the Magistrate and the learned Magistrate proceeded with the case. The proviso in my view is not attracted to cases where the opposite party having been served with notice appears in court, proceeds to contest the application, but does not appear on the last date when evidence is recorded. If we consider together the two circumstances of wilfully avoiding service' and 'wilfully neglects to attend the court' as they appear in the Proviso to Section 488(6) the reasonable interpretation of the proviso would be that it is attracted to cases where the opposite party cannot be made to or does not attend the court at all. If the opposite party before the Magistrate attends court and thereafter fails to appear, the proviso in my view would not be attracted and an order made in the case in the petitioner's favour would not be liable to be set aside under the second part of the proviso.
6. In the above view of the matter the question of limitation would hardly arise in the present case. The application of the petitioner for setting aside the ox parte order has in my view been rightly rejected. The Rule accordingly stands discharged.