IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1176 of 2007 MRITUNJAY KUMAR @ MANTU Versus STATE OF BIHAR & ANR ----------- 3 11.5.2009 Heard the learned counsel for the parties. The instant revision application is directed against the order dated 28.7.2007passed by the Principal Judge, Family Court, Patna in Maintenance Case No.43M/04 whereby the petition filed by the petitioner under Order IX, rule 13 read with section 115 of the C.P.C. for recalling/setting aside the exparte order dated 25.1.2006 passed by Principal Judge, Family Court, Patna has been rejected being not maintainable. The O.P.No.2 had filed a maintenance case being Maintenance Case No.43M/04 under section 125 Cr.P.C. Notice was issued to the petitioner. The case of O.P. No.2 is that as the petitioner did not appear the court proceeded exparte. It appears from the impugned order that the Principal Judge taking into consideration that the petitioner is an scribe at Registry Office, Bikram and is earning a sum of Rs.5,000/- from his profession and Rs.2000/- from rent directed him to pay a sum of Rs.5500/- in all to the complainant as well as her minor son. Thereafter the petitioner filed an application under Order IX rule 13 read with section 151 of C.P.C. for setting aside / recalling the order dated 25.1.2006 passed exparte. The learned Principal Judge rejected the said application as non-maintainable. There cannot be any dispute that final order passed under - 2 - section 125 Cr.P.C. cannot be recalled/set aside under Order IX rule 13 read with section 151 of C.P.C. However, learned counsel for the petitioner submits that this Court has ample power to call records of any proceeding in which the Family court has passed order under Chapter IX of Cr.P.C. He submits that the petitioner does not do any scribe work, neither gets a sum of Rs.2000/- from rent nor he has any dairy business. He submits that in any view of the matter the circumstance of the petitioner so far his capability to pay as before, is not the same. Learned counsel for the O.P. submits that the petitioner has sufficient means to pay sum of Rs.1500/- to O.P. No.2 and her minor son. Learned Principal Judge, Family Court rightly rejected the petition under Order IX rule 13 read with section 151 of C.P.C. as not maintainable. However if circumstances as warranted under section 127 Cr.P.C. stands changed, it would be open for him to file an application for alteration in allowances. If such petition is filed, the learned Principal Judge will consider and dispose of the same on its own merit. The parties would be entitled to lead evidence. Pending final adjudication of the case before the Principal Judge, the petitioner would continue to pay the arrears of maintenance at the rate specified by the learned Principal Judge w.e.f. 7.4.2004 in 18 equal monthly instalments. However, the payment of such equal monthly instalment - 3 - would be subject to any order passed under section 127 of Cr.P.C. This revision application is disposed of with aforesaid direction and liberty. Anilkr.sinha (Samarendra Pratap Singh,J.)