JUDGMENT
D.P. Mohapatra, J.
1. The short question that arises for determination in this case is whether the learned Subdivisional Judl. Magistrate, Bhubaneswar (‘S.D.J.M.’ for short) was justified in refusing the petitioner’s prayer for stay of operation of the order passed Under Section 125, Criminal Procedure Code (Cr. P.C.) directing him to pay each of the opposite parties Rs. 200/- per month towards maintenance.
2. On the application filed by opposite party No. 1 K. Sundaramma Under Section 125, Cr.P.C claiming maintenance from the petitioner for herself and for her minor daughter, opposite party No. 2, K. Jessica Misc. Case No. 11 of 1986 was registered in the Court of the S.D.J.M.. It was alleged in the petition, inter alia, that the marriage of opposite party No. 1 with the petitioner took place according to Christian custom at Saint Vincent Church, Little Aden. Arabia in the year 1962 and since then they were living as husband and wife; that out of the said wed-lock, the opposite party No. 2 was born in the month of July, 1963; that the petitioner ill treated the opposite party No. 1 and finally drove her out of his house on 5.6.1975. Since the opposite parties have no independent source of income to maintain themselves, they filed the application for maintenance from the petitioner.
3. In the case the notice was held to have been served on the petitioner by registered post with A.D. and since he failed to appear in the case despite service of notice on him, the case was heard ex-parte and by order dated 27.9.1986. the petitioner was directed to maintenance of Rs. 200/- per month to each of the opposite parties.
4. Thereafter at the instance of the opposite parties a proceeding under Section 125, Cr. P.C. (Misc. Case No. 94 of 1986) was initiated for implementation of the order Under Section 125, Cr.P.C. and for realisation of the amount due. In the said case, the petitioner received a show cause motion on 9.5.1987. From the contents of the said notice the petitioner alleges that he came to know for the first time that a proceeding under Section 125, Cr.P.C. had been initiated and disposed of ex parte against him. He therefore filed a petition under Section 126(2), Cr.P.C. to set aside the ex parte order passed in Misc. Case No. 11 of 1986 which was registered as Misc. Case No. 94 of 1986. In that case the petitioner filed an application to stay operation of the ex-parte order passed in Misc. Case No. 11 of 1986 till disposal of his petition Under Section 126(2), Cr.P.C. By order dated 11.9.1987 the learned S.D.J.M. rejected the petitioner for stay mainly on the ground that the Criminal Procedure Code does not vest in him the power to stay operation of the order. The said order is under challenge in this revision petition filed Under Sections 397, 401 and 482, Cr.P.C.
5. On perusal of the revision petition, it appears to me that the main grievance of the petitioner is against the observation made by the learned Magistrate in the impugned order that he has no power either to pass a default order or set aside an ex-parte order. This observation, the petitioner contends, prejudges the issue raised in the petition filed by him under Section 126(2), Cr.P.C.. In addition to the above reason, the learned Magistrate has also observed in the order that there is no specific provision in the Cr.P.C. to stay any proceeding and hence it is not desirable to stay further proceeding of the case merely on the ground that the opposite party (revision petitioner) has filed a petition to set aside the ex-parte order.
6. On the foregoing discussions, the question that falls for determination is whether the Magistrate has power to stay operation of an ex-parte order granting maintenance under Section 125, Cr.P.C. during the pendency of an application filed under Section 126(2), Cr.P.C. to set aside the said order. The learned S.D.J.M. was right in observing that there is no provision in the Cr.P.C. expressly vesting the power of stay in him in such a situation. But, in my view he was not right in observing further that for that reason he could not entertain the application for stay. He was also in error in holding that he had no power set aside the ex-parte order. Indeed, Section 126(2) proviso clearly lays down that if the Magistrate is satisfied that the person, against them an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. The position is well settled that under the Cr.P.C. the subordinate criminal Courts cannot exercise any inherent powers. In this connection the decisions of the Apex Court in A.I.R. 1977 S.C. 2432 (Bindeshwari Prasad Singh v. Kali Singh) A.I.R. 1983 S.C. 67 (Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors.), A.I.R. 1986 S.C. 1440 (Maj. Genl. A.S. Gouraya and Anr. v. S.N. Thakur and Anr.) and decisions of this Court in 63 (1987) C.L.T. 204 (Ramesh Samal and eight Ors. v. Chabi Mandal and Anr.) and 63 (1987) C.L.T. 226 (Madhab Chandra Jena and Anr. v. State of Orissa) may be noticed.
7. There still remains for consideration the question whether in the absence of any express provision and in the absence of any inherent power, the learned S.D.J.M. could exercise the power of stay. This question, in my view, is to be answered in the affirmative in view of decision of the Apex Court in the case of Income Tax Officer Cannanore v. M.K. Mohammed Kunchi, reported in A.I.R. 1969 S.C. 430. Therein the Court ruled that the appellate Tribunal has power to grant stay as incidental or ancillary to its appellate jurisdiction. It was observed that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Interpreting Section 255(5) of the Act, the Court held that the provision does empower the appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt our from that provision. Even then the Court held that the power to grant stay as incidental or ancillary to its appellate jurisdiction vested in the Tribunal.
8. From the principles laid down in the aforementions decisions it is clear that even if there is no statutory provision vesting the power of stay in the Court yet such power may be exercised in an appropriate case as incidental or ancillary to the jurisdiction vested in the Court of Tribunal. As noticed earlier, the power to set the opposite parties ex-parte in certain circumstances and the power to set aside an ex-parte order on good cause being shown are both vested in the Magistrate under the provisions in Section 126(2), Cr.P.C. Therefore it cannot be said that the Magistrate has no power as all to stay operation of an ex-parte order in granting maintenance. But that does not mean that such power will be exercised in all cases. Exercise of the power will depend on the facts and circumstances of the case. Indeed, considering the intent and purpose behind the provision in Section 125, Cr.P.C. which is meant to avoid destitution and vagrance of deserted wife, parents and minor children incapable of maintaining themselves, the power to stay operation of the order of maintenance should be very sparingly used. Without intending to be exhaustive, some of the circumstances in which the power of stay is to be exercised is when it is apparent that the order or maintenance has been obtained on supression of material facts or on consideration of forged and fabricated documents or the order is patently illegal or the claim for maintenance is barred under law and etc.
9. Considering the facts and circumstances of the case and the submissions of the learned Counsel for the parties. I am not satisfied that in the present case the order granting maintenance to the wife and minor child should be stayed during pendency of the proceeding Under Section 126(2), Cr.P.C..
10. The learned Counsel for the parties had advanced some argument regarding the validity and legality of the ex-parte order passed by the learned S.D.J.M. mainly on the ground that the procedure to serve notice on the opposite party (revision petitioner) by registered post without taking recourse to the usual procedure for service or notice through Court was erroneous and that the learned S.D.J.M. did not record any finding that he was satisfied that the opposite party (revision petitioner) was wilfully avoiding the service; I would not like to go into this question at this stage since the question will come up for consideration by the learned Magistrate in the proceeding initiated on the application filed by the revision-petitioner Under Section 126(2), Cr.P.C.. Any observation made by me is likely to prejudice either of the parties.
11. On the analysis and for the reasons discussed in the regarding paragraph, I do not feel called upon to interfere with the order passed by the learned Magistrate rejecting the petitioner’s application to stay operation of the order granting maintenance during pendency of the proceeding Under Section 126(2), Cr.P.C. I would however, direct that the learned Magistrate shall dispose of the said proceeding in accordance with law as expeditiously as possible. Subject to the above observation, the revision petition is dismissed.