R.L. Narasimham, C.J.
1. This is a reference by the Additional District Magistrate of Kalahandi recommending the setting aside of an order under Section 489 Cr. P. Code passed by Sri B.C. Mitter, Magistrate First Class of Rhowanipatna.
2. The material facts are as follows: The petitioner Annapurna Devi who was the wife of opposite party Satrughna Mahakud filed a petition under Section 488, Cr. P.C. on 3-5-54 before the Sub-Divisional Magistrate of Kalahandi claiming maintenance for herself and her minor children at Rs. 100/- per month. That case was heard and disposed of by Sri R.V. Mohanty who by his order dated 20-10-54 dismissed the petition holding that the evidence was not sufficient to show that the husband refused or neglected to maintain her. Against that order the petitioner filed a revision (Criminal Revision No. 4 of 1954) before the Additional District Magistrate of Kalahandi. During the pendency of the revision petition the parties entered into compromise and filed a compromise petition to the following effect;
(i) That the opposite party Satrugnna Mahakud will give towards the maintenance of the petitioner three pastomas of paddy every year, payable by the 15th of Magh every year and the first due will be paid on the 15th of this coming Magh as advance.
(ii) That the parties will not quarrel any more.
(iii) That in case of default of payment of maintenance allowance as stated above, by the opposite party, the petitioner will execute the terms of the compromise relating to maintenance in the competent Court.
3. On receipt of this compromise petition the learned Additional District Magistrate passed the following order on 17-12-54:
'Parties present with their lawyers. They file petition of compromise which is accepted and the petition is disposed of in terms of their compromise.'
On 24-12-57 the husband filed a petition purporting to be one under Section 489(1) Cr. P. Code for reduction of the amount of maintenance. This was objected to by the wife and one of the points taken on her behalf was that the petition was not maintainable inasmuch as the maintenance ordered on the previous occasion was not a monthly cash maintenance as contemplated by Section 488 Criminal Procedure Code. The learned Magistrate, Sri B.C. Mitter who heard the matter overruled the objection giving on Punn Deb v. Mt. Bishnuli, AIR 1950 All 454 and reduced the quantum of maintenance after commuting the paddy maintenance to cash allowance of Rs. 8/- per month. Against this order of the learned Magistrate the wife filed a revision petition before the Additional District Magistrate of Kalahandi urging that the learned Magistrate had no jurisdiction under Section 489 Cr. P.C. to alter the rate of maintenance and convert the yearly rate to a monthly rate.
4. It is now well settled by authority that the maintenance contemplated in Sections 488 and 489 Cr. P. Code is monthly cash maintenance and not in grains or in any other form, to be paid annually or at periodical intervals -- See Odachi v. Viramuthan, 2 Weir 627, Mukta v. Dattu Mahadev, AIR 1924 Bom 332, Atru v. Mt. Mahon AIR 1925 Lah 142, (1), Kaluram v. Emperor, AIR 1932 Nag 183. & Ahi Rani v. Govind Pola, 1953 Cri L.T 83 : (AIR 1953 Sau 2). If either party had approached this Court against the order of the Additional District Magistrate dated 17-12-54 disposing of the revision petition in terms of the compromise, this Court, in exercise of its revisional jurisdiction, might have embodied the terms of that compromise in a pro-per order under Section 488 Cr. P. Code after commuting the agreed annual paddy maintenance into monthly cash maintenance. Unfortunately neither party apporached this Court then and the order of the Additional District Magistrate was allowed to remain unmodified.
5. The main question for consideration now is whether that order can be held to be an order under Section 438 Cr. P. Code so as to entitle the husband to apply under Section 489 Cr. P. Code for modification of that order on the ground that there has been a 'change in the circumstances'. In my opinion, the order of the Additional District Magistrate dated 7-12-54 will not be an order under Section 488 Cr. P. Code for two reasons: Firstly it embodies the terms of the compromise directing payment of annual maintenance in paddy and does not provide for monthly cash maintenance. Secondly, the Additional District Magistrate in exercise of his revisional jurisdiction under Section 435/ 438 Cr. P. Code has no power to pass any find order. If he thought that the Magistrate's order was wrong and that in view of the compromise petition a monthly allowance should be fixed for the wife, he should have referred the case to the High Court under Section 438, Cr. P. Code recommending the acceptance of the terms of the compromise and commuting the agreed annual produce maintenance to monthly cash maintenance.
His order that 'the petition, is disposed of in terms of the compromise' is vague and the only reasonable construction that can be given to it is that the wife did not press the revision petition pending before him in view of the agreement between the parties. Moreover clause 3 of the compromise does not show that the parties intended that the terms should be embodied in the form of an order of Section 488, Cr. P. Code. If there was default in payment of the maintenance allowance the only right reserved for the wife was to 'execute the terms of the compromise relating to maintenance in the competent court.'' The expression 'competent court' is vague and will not necessarily indicate that the parties wanted the machinery of the Criminal Court to be utilised for this purpose. I must therefore hold that the order of the Additional District Magistrate daed 17-12-54 is not an order under under Section 488 Cr. P. Code and that it only took notice of a private agreement between the parties. Consequently that order cannot be modified under Section 489 Cr. P. Code-- see Kesheorao Mandloi v. Maltibai, 1941 Nag LJ 622.
6. The result therefore, is that the husband could not apply under Section 489 Cr. P. Code for modification of the previous order. The reliance on AIR 1950 All 454, by Sri B.C. Mitter as regards the maintainability of the present application is not correct. In the Allahabad case the question as to whether an order of payment of maintenance in a form other than monthly cash payment would be a valid order under Section 488 Cr P. Code was not considered. Moreover in that case the original order was passed by the Magistrate who heard the application under Section 488 Cr. P. Code and he bud undoubted jurisdiction to pass a final) order. Nobody challenged the validity of that order before any superior Court. Subsequently, when an application was filed before the same court by the husband under Section 489 Cr. P.C. the learned Judge thought that the Magistrate could, in view of the change of circumstances, fix the maintenance at a specified monthly rate. Here, on the contrary, the original order for payment of paddy maintenance was passed by the Additional District Magistrate in exercise of his revisional jurisdiction under Section 438, Cr. P. Code. This could not obviously bedone under the provisions of that section.
7. I must therefore hold that the petition ofthe opposite party under Section 489 Cr. P.C. is not maintainable inasmuch as there is no valid order under Section 488 Cr. P.C. which required modification. The reference is therefore accepted and the order of Sri B.C. Mitter, Magistrate First Class, Bhowanipatna, dated 23-3-59 is set aside.