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IN THE HIGH COURT OF ORISSA AT CUTTACK

RPFAM No. 143 OF 2011

Kumari Manjulata Barik and another

….

Petitioners

Mr. Prafulla Kumar Kar, Advocate

-versus-

Purna Chandra Barik

….

Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

08.02.2023

4.

1.

This matter is taken up through hybrid mode.

2.

The Petitioners in this RPFAM seek to assail the order

dated 25^th October, 2011 (Annexure-2) passed by learned Judge,

Family Court, Balasore in Cr.P. No.951 of 2010, whereby an

application filed for implementation of the compromise entered

into between the parties in Misc. Case No.2 of 1998 filed under

Section 125 Cr.P.C., has been rejected.

3.

Mr. Kar, learned counsel submits that the Petitioners being

the minor children of the Opposite Party, stayed in their maternal

uncle’s house after death of their mother. Since the Opposite

Party did not look after them, they filed an application under

Section 125 Cr.P.C. before learned S.D.J.M., Balasore, which was

registered as Misc. Case No.2 of 1998. During pendency of the

petition under Section 125 Cr.P.C., a compromise was effectd

between the parties and on terms and conditions of the

compromise, the petition under Section 125 Cr.P.C. (Misc. Case

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No.2 of 1998) was disposed of vide order dated 8^th July, 1998

under Annexure-1.

4.

It is submitted by Mr. Kar, learned counsel for the

Petitioners that amongst other terms and conditions, it was agreed

between the parties that if the Opposite Party does not get a

salaried service, he will pay a Rs.300/- per month to the

Petitioners from the date of application till they attain their

majority. However, the Opposite Party did not comply with the

said terms and compromise. Hence, the Petitioners filed an

application for realisation of the said amount in Cr.P. No.951 of

2010. It is further submitted that prior to the filing of the petition,

the Petitioners had also filed Execution Case No.362 of 2000 for

realisation of the arrear maintenance amount from 1^st December,

2000 to 30^th April, 2010. But the said execution case was

dismissed with an observation that the compromise entered into

between the parties is not executable. On the self-same ground a

subsequent application was filed in Cr.P. No.951 of 2010 for

realisation of the arrear amount subsequent to 30^th April, 2010 and

the impugned order has been passed under Annexure-2.

5.

Mr. Kar, learned counsel for the Petitioners submits that

although a petition under Section 128 Cr.P.C. is not maintainable

for execution of a compromise entered into between the parties,

but in view of such compromise the Petitioners are entitled to

maintenance, till they attain their majority. This aspect was lost

sight of learned Judge, Family Court. Hence, he prays for setting

aside the impugned order under Annexure-2 and direct learned

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Judge, Family Court to entertain the application under Section

128 Cr.P.C. on merit.

6.

On perusal of the order sheet, it appears that vide order

dated 23^rd April, 2012, this Court directed issuance of notice to

the Opposite Party. In the meantime, more than twelve years have

elapsed. It further appears that, earlier execution proceeding in

Execution Case No.362 of 2000 was dismissed on the self-same

ground that of the present impugned order under Annexure-2.

But, the said order was neither challenged nor the Petitioners took

any step to challenge the compromise entered into between the

parties. In that view of the matter, this Court feels that learned

Judge, Family Court has committed no error in dismissing Cr.P.

No.951 of 2010 filed under Section 125 Cr.P.C.

7.

Accordingly, the RPFAM being devoid of any merit stands

dismissed.

8.

Dismissal of the RFAM does not preclude the Petitioners

to work out their remedy, if available to them