IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.270 of 2011 ISHAK AHMAD . Versus KIRTI NISHA . ----------- 03 30.03.2011 Although the application was listed under the heading for orders on petition for consideration of limitation application (I.A. No. 426 of 2011), this Court, in view of the facts involved, permitted the petitioner to make submissions on merit. Heard learned counsel for the petitioner and the State. Petitioner is aggrieved by order dated 09.07.2009, passed by learned Principal Judge, Family Court, Siwan in Misc. case no. 179 of 2007, whereby on a consideration of the materials on record, he has been directed to pay maintenance to opposite party in the sum of Rs. 900/- (Nine hundred) per month besides a sum of Rs. 200/- (Two hundred) each to three minor children, namely, Siraj, Sahil and Shalu for their maintenance. It appears from the impugned order that the same was passed in absence of the petitioner. Learned Family Court has recorded as under in para 3:- “Despite issuance of notice to the O.P. both through Nazart, as well as, registered post he, did not appear to contest this case which was fixed for ex-parte hearing by this courts order dated 28.08.08 treating service report of notice through Nazarat as constructive notice to the O.P.” Learned counsel for the petitioner with reference to averments made in the condonation petition, submits that he was not served with a notice and as such he filed an application before the said Court on 30.10.2009 for setting aside the ex-parte order 2 wherein the learned Court below fixed date as 02.12.2009. Rejoinder was also filed. Referring to the averments made in para 5 of the limitation petition it is submitted that the Court below has not passed any order on the said application till date. Code of Criminal Procedure (hereinafter referred to as the „Code‟) provides an avenue in terms of the provision contained in Section 126 of the Code for setting aside ex parte order if the petitioner is able to demonstrate that the order was passed without valid service of notice on him. The Court has to consider the same in the light of pleadings and materials on record and pass appropriate orders. Such application, as per provision of the Code, has to be filed within a time frame. It appears from the submissions advanced on behalf of the petitioner that the said application has already been filed and entertained by learned Court below. This Court thus, disposes of the present application by the following order:- Let trial Court consider the pending application filed on behalf of the petitioner under Section 126 of the Code and dispose of the same in accordance with law after affording opportunity of hearing to both the parties within a period of 10 weeks from the date of receipt/production of a copy of this order. Since I have considered the merit of the case, the issue of limitation pales into insignificance. At this stage, learned counsel for the petitioner handed in certified copy of order dated 24.07.2010 passed in Misc. case no. 179 of 2007 which is taken on record and marked „X‟ and 3 contended that distress warrant has been issued. In that view of the matter, it is directed that if petitioner deposits/pays a sum of Rs. 10,000/- (Ten thousand) for use of opposite party and files an affidavit in the trial Court within a period of 03 weeks, then the trial Court shall not give effect to the order dated 24.07.2010 passed in Misc. case no. 179 of 2007 for a period of 04 weeks therefrom. Sym ( Kishore K. Mandal, J.)