JUDGMENT

A.P. Srivastava, J. - This application in revision has been filed by Defendants against a decree passed by the Judge small Cause Court of Moradabad against them in a suit filed by Smt. Rukmani Devi. The Plaintiff is the mother of one Shanti Prasad who was carrying on the business of plying trucks and lorries in partnership with several other persons one of whom was Hira Lal. Shanti Prasad executed a will on 10-7-1946 by which he provided, among other things, after his death out of the net income of the lorry business Hira Lal, the Managing Director, shall pay Rs. 20 per month to his mother, the present Plaintiff, so that she could maintain herself. The Plaintiff alleged that after the death of Shanti Prasad, Hira Lal paid the monthly allowance for some time, but then difference arose between him and the Respondents who are the widow and son of Shanti Prasad. As a result of these disputes Hira Lal withdrew from business and the applicants began to manage the business. The Plaintiff Smt. Rukmani Devi thereupon filed a suit against the applicants for the recovery of Rs. 320 on account of arrears of allowance together with Rs. 13 due on account of interest.

2. The suit was contested by the present applicants on various grounds. But we are concerned at present only with two of them. In the first place, they contended that the suit was not entertaintable by the Moradabad Court because no part of the cause of action had arisen at the place. The second contention raised was that the suit was not cognizable by a Small Cause Court as it fell under item 38 of the second schedule of the Small Cause Court Act.

3. The Judge, Small Cause Court, repelled the first contention on the ground that Shanti Prasad the testator, intented that the allowance should be payable to the Plaintiff at the place of her residence and, therefore, the Plaintiff could file the suit at Moradabad where she ordinarily resided. He rejected the second contention on the ground that suit did not relate to maintenance and did not, therefore, fall under item No. 38 of the second schedule of the Small Cause Court Act. He found in favour of the Plaintiff on other points and decreed the suit.

4. The Defendants have come up to this Court in revision and the two points mentioned above, which were rejected by the learned Judge Small Cause Court, have been reiterated in this Court.

5. The first point that, therefore, arises for decision is whether the suit could have been filed in the Moradabad Court on the ground that the Plaintiff resided there.

6. It does not appear to be necessary to go into the question becaufe the point relates only to territorial jurisdiction. u/s 21 of the CPC:

No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where the issues are settled at or before such settlement and unless there has been a consequent failure of justice.

7. In the present case the objection about the place of suing was certainly raised in the written statement but the Learned Counsel for the applicants has not been able to satisfy me that there has been any failure of justice on account of the plea being overruled.

8. The other contention appears to be more important. Under item 38 of the second schedule of the Small Cause Court Act a suit relating to maintenance is exempt from the cognizance of the Small Cause Court. The question, therefore, is whether the suit filed by the Plaintiff out of which this application in revision has arisen was a suit relating to maintenance. The provisions of the will on which the suit was based have already been mentioned. The contention of the Learned Counsel for the applicants is that the suit was in essence and form a suit for arrears of maintenance. The reply of the Learned Counsel for the opposite party, however, is that this suit was not a suit for maintenance at all, but it was only a sui