A decree for maintenance can be amended only by a separate suit unless it contains a clause enabling the parties to apply for modification of its terms.

N.L.Untwalia, J.

1. On the 21st of June, 1952 opposite party No. 1 who is the wife of the petitioner obtained a decree for maintenance against the latter in the court of the Subordinate Judge at Motihari in title suit No. 98 of 1951 The suit was decreed for arrears of maintenance and future maintenance at the rate of Rs. 100 per month and for a sum of Rs. 5,000.00 for a separate residence for the opposite party. There were no words in the said decree directing that in future the decree could be amended or modified on a proper application being made by any party to it either in regard to the amount of maintenance or in respect of the amount granted to the decree holder for a separate residence.

2. Opposite party No. 1 filed an application in the court of the subordinate Judge at Motihari on the 1st of February, 1968 labelling it as one under Sections 47 and 151 of the Code of Civil Procedure and Sec.25 of the Hindu Adoptions and Maintenance Act, 1956 (Central Act, 78 of 1958) hereinafter called the Act for amending the decree aforesaid by enhancing with effect from January, 1963 the amount of monthly maintenance from Rs. 100.00 to Rs. 500.00 and for making another grant of Rs. 3,000.00 for the repair of her separate residential house.

3. The petitioner took an objection in the court below that the application was not maintainable as the decree could not be amended by a mere application; the remedy of the opposite party who was the applicant in the court below was to file a separate suit for altering the amount of maintenance or for grant of another sum for the alleged repair of the house The learned Subordinate Judge, by his order dated 26-5-66, has refused to decide this question as a preliminary issue while tentatively expressing the opinion that in view of the provision contained in Sec.25 of the Act the decree for maintenance can be amended on a mere application by a party to the decree The petitioner has come up in revision.

4. Before coming into force of the Act, by several decisions the law was well settled, as noticed in Mullas Hindu Law including the latest (13th) edition at page 555, that the amount of maintenance whether it was fixed by a decree or an agreement was liable to be increased or diminished whenever there was such change of circumstances as would justify a change in the rate. The decisions in support of this view were only to refer to some of them--Ruka Bai V/s. Ganda Bai (1875-77) ILR 1 All 594, Ranmalsangji Bhagwatsangji V/s. Bai Kundankuvar (1902) ILR 26 Bom 707 Trimbak Wamanrao V/s. Mt. Bhagu Bai AIR 1939 Nag 249, and Mt. Savitribai V/s. Radhakisan AIR 1948 Nag 44. The law in regard to the remedy and the procedure which had to be followed for alteration of the amount of maintenance fixed either by a decree or an agreement was also well settled. In regard to the amount of maintenance fixed by agreement it could be altered either by agreement between the parties or by a suit. The amount fixed by a decree could be altered only by a separate suit except in cases where the decree sought to be altered contained a clause enabling the parties to apply for modification of its terms in which case an application could be made to alter the rate in the court which had passed the decree or was executing it. In this connection, reference may be made to the observations of the Privy Council in Mt. Ekradeshwari Bahuasin V/s. Homeshwar Singh, AIR 1929 PC 128 at p. 129 (column 2). The High Court, while passing the decree for maintenance, had made such a provision for future alteration of the amount. The Board approved of this procedure as one "sound in principle and advantageous in procedure."

5. Undoubtedly, Sec.25 of the Act has codified the substantive law as it existed before its enactment by expressly providing.

"The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement, of this Act, may be altered subsequently if there is a material change in the