1. A preliminary objection is raised that no second appeal lies in this case, inasmuch as the suit is one for Rs. 138-0-6, and is of a nature cognizable by a Court of Small Causes. The suit is to recover the above sum under an agreement, Exhibit A, Whereby the defendant's father and Ors. promised to pay maintenance at the rate of Rs. 7 per mensem to the plaintiff. In other words, it is a suit to recover arrears of maintenance fixed by contract at a certain monthly sum.
2. We are of opinion that this is 'a suit relating to maintenance ' and therefore excluded from the jurisdiction of a Small Cause Court (Article 38, schedule 2 Act IX of 1887). It is argued that the decision in Komu v. Krishna I.L.R. 11 Mad. 134 is an authority opposed to this view; but we observe that this is not so, for that ease was decided under the law Act XI of 1865 in force before Act IX of 1887 was passed, and the terms of that Act were quite different from those of the present Act.
3. Under the old Act certain suits relating to maintenance, viz., those for maintenance claimed on a special bond or contract had been decided by the Courts to be cognizable by a Court of Small Causes, while suits to determine the amount of maintenance had been decided not to be so cognizable Sidlingapa v. Sidava Kom Sidlingapa I.L.R. 2 Bom. 624 Nurbibi v. Husen Lal I.L.R. 7 Bom. 537. The language of the present Act was apparently adopted so as to exclude from the cognizance of the Small Cause Court suits for maintenance claimed on a special bond or contract, which, under the former law, wore held to be triable by a Small Cause Court Bhagvantrao v. Gan patrao I.L.R. 16 Bom. 267 .
4. We, therefore, disallow the preliminary objection. On the merits the only ground of appeal argued before us is that:, as, there is no proof that the defendant received assets from, his father, the suit against him personally ought to have been dismissed. We observe that the decree is merely against the defendant as the legal representative of his late father, and such decree can only be executed against assets of the father in defendant's hands. The second appeal fails and is dismissed with costs.