JUDGMENT
1. In O.S. No. 157 of 1864 in the District Mun-sif’s Court at Berhampore, the widow of one of five brothers who were Hindus, brought a suit against her husband’s surviving brothers, four in number, for her maintenance and got a decree making them laible to pay the same to her periodically. The maintenance, however, was not made a charge on any property. Venkatasubba Rao was the judgment-debtor who survived last and the decree-holder took out execution against him after the death of the other judgment-debtors and recovered Rs. 197 and odd, The plaintiffs, who are the sons of Venkatasubba Rao, sue the defend-ants who are the sons of one of the judgment-debtors that prede-ceased Venkatasubba Rao for a fourth of the amount paid by the plaintiffs in execution of the decree as aforesaid. The lower appellate Court dismissed the plaintiffs’ suit.
2. It is contended for the defendants that no second appeal lies in the case and this objection is clearly well founded as the suit is one which does not fall under any of the articles in Schedule II to the Provincial Small Courts Act (Act II X of 1887). Neither Article 38 nor the first part of Article 41 to which reference was made on behalf of the plaintiffs, has obviously any bearing on the case. The claim here is not one ‘ relating to maintenance with reference to the former article, nor in respect of a payment made by a sharer in joint property of money due from a co-sharer’ within the meaning of the latter. It is not the fact that the brothers were liable to the decree-holder for maintenance, nor is there any circumstance connected with the position of the brothers in the family or their right in respect of its property, that is the real basis of the present claim for contribution, but the liability cast upon them by the decree passed against them jointly. The anterior liability which led to such a decree being passed is immaterial so far as the present question is concerned.
3. The second appeal is, therefore, dismissed with costs.
