HEARNE J.—Swans v. Perera.
1340Present: Soertyz and Hearne JJ.
SWARIS v. PERERA.169—D. C. Kalutara, 20,619.
Alimony—Aciion for separation—Order for payment of alimony secured by■mortgage of property entered of consent—Application by husband Inmodify order—Civil Procedure Code, s. 615.
Section 615 of the Civil Procedure Code gives no right to a husbandto apply for the modification of an order for the monthly payment ofalimony when the order is accompanied by a direction that the paymentshould be secured by the hypothecation of property.
Held, further that such an order could not be made under the sectionapart from the consent of parties.
PPEAL. from an order of the District Judge of Kalutara.
V. Perera. K.C. (with him U. A. J ay asunder e and A. C. Alles), fordefendant, appellant.
N. E. Weerasooria, K.C. (with him A. C. Z. Wijeratne), for plaintiff,respondent.
Cur. adv. vult.
August 3b, 1940. Heakne J.—
The plaintiff-respondent sued the defendant-appellant for separationa mensa ci thoro, for alimony at Rs. 500 per mensem and for an order onthe defendant to secure “ the said sum of Rs. 500 per mensem by a properinstrument ”.C
The first point to be noted is that in the plaintiff’s prayer in regard toalimony she asked for an order which, in the absence of consent by thedefendant thereto, it was beyond the competence of the Court to make.
Tinder section 615 of the Civil Procedure Code the Court may order thatthe husband should secure to the wife a gross or annual sum of money forany term not exceeding her own life …. and for this purposemay cause a proper instrument to be executed by all necessary parties.
It may also order the husband to make a monthly or weekly paymentto the wife, subject to the former’s right to make an application at a laterStage to have the order discharged, modified or suspended.
HE ARNE J.—S war is v. Perera.
But the Court has no jurisdiction to make an order against the husbandEor monthly or weekly payments coupled with an order requiring him togjve security for such payments.
The parties arrived at a settlement. The defendant agreed to pay andthe plaintiff agreed to accept a sum of Rs. 150 per mensem. The defend-ant also agreed to secure the monthly payments, and in the result, thatportion of the decree which dealt with alimony gave effect to the agree-ment in the following terms :—“ Defendant to pay Rs. 150 per mensemas alimony to the plaintiff for herself, to be secured by the hypothecationof his coconut estate at Ambepitiya and all his land at Katukurunda ”.
Subsequently the defendant applied to the Court to modify the orderfor the payment of alimony. His application was dismissed and he hasnow appealed.
In the course of his order the Judge referred to the fact that the words“ until further orders ”, which usually appear in decrees passed by theCourt, have been omitted from the decree entered in this case : that, asthose words are intended to secure to the defendant the right to apply tothe Court for a variation of its order in regard to alimony, their deliberateomission, following the terms of settlement, indicates that the defendanthad agreed to waive whatever right he had under section 615 C. P. C.
Mr. Perera has, however, brought to our notice the case of Smith v.Smith in which grave doubt was expressed whether the omission of suchwords of release as “ liberty to apply ” or “ until further order ”, can betaken to mean that the parties had agreed to contract themselves out oftheir statutory rights.
It would have been necessary to consider the doubt to which Langton J.gave expression, if the defendant had a right under section 615 to applyto the Court for a variation of its order, and if the omission of the words“ until further order ” was the only circumstance which suggested he hadbargained away such right.
But I am clearly of the opinion that the form of the order to which thedefendant agreed left him no statutory right to reopen the matter.
Section 615 gives the husband the right to apply for the discharge,modification or suspension of an order for the monthly or weekly paymentof alimony, but not when the order is accompanied by a direction thatthese monthly or weekly payments should be secured. Such an ordercould not have been made, apart from consent, and, in the circumstancesof this case, the Court could not vary the order unless the plaintiff alsoagreed to this being done.
In the case of Maidlow v. Maidlow2, it was held that, having regard tosection 1 (2) of the Matrimonial Causes Act 1907—this provides for thepayment by the husband to the wife of monthly or weekly sums “ during,their joint lives ”—an order for the payment to the wife “ during herlife” could only be made by consent, and the order being so made couldnot be varied.
In the course of the argument on appeal the point was taken by Counselfor the respondent that as the decree was a consent decree under section408 C. P. C. it could, in no circumstances, he impugned. I expressly> 145 L. T. R. 23.3 (10 H) Probate 245.
• Samarasinghe v. Dalpatadu.
dissociate myself from this view. I do not think that a decree which giveseffect to and embodies an agreement between parties is sacrosanct Itis true that no appeal lies. That is the significance of the word “ final ”in the section. But such a decree may be set aside on any ground whichwould invalidate an agreement, as for instance, fraud, misrepresentationor mistake. The adjustment or settlement must be “ lawful ”. If it isnot, the Court will not perpetuate it. I do not know if section 408 hasbeen judicially interpreted by this Court. No authorities were cited and,in the absence of local authority, I would follow the general principlelaid down in Huddersfield Banking Co., Ltd. v. Lister1; and Wilding v.Sanderson'. I find that in India too, Fatmabai v. Sonbai*, it was heldthat a consent decree could be impeached on the ground of fraud in aregular suit or by an application for review. In the present case, however,there was no suggestion of fraud, misrepresentation or mistake and, for thereasons which I have given, the appeal in my opinion fails and must bedismissed with costs.
There is a connected application in revision which seeks a modificationby this Court of the decree entered in the lower Court. This is withoutmerit and is also dismissed with costs.
Soertsz J.—I agree.
SWARIS v. PERERA