DE SILVA v. KING

012-NLR-NLR-V-36-DE-SILVA-v.-KING.pdf


De Silva v. King.
57
1934Present: Garvin S.FJ. and Poyser J.
DE SILVA v. KING.
211—D. C. Colombof 48,762.
Husband and wife—Action for divorce by husband—Decree in favour ofhusband with settlement out of wife's property—Amount of settlementreduced in appeal—Husband's appeal to Privy Council—Agreementwith regard to settlement—Withdrawal of appeal to Privy Council—Validity of agreement—Not contrary to public policy—OrdinanceNo. 15 of 1876, s. 13, and Civil Procedure Code, s. 349.
In an action brought by the plaintiff against his wife, the defendant,for divorce, the District Court entered decree dissolving the marriageand declaring the plaintiff entitled to such a settlement, out of hiswife’s estate, as would yield a monthly income of Rs. 1,000. In appeal,the Supreme Court affirmed the decree, dissolving the marriage butreduced the amount of the settlement to a monthly income of Rs. 400.
The plaintiff appealed to the Privy Council from this judgment.Pending this appeal and an appeal by the defendant from the refusalof the District Court to enter decree absolute dissolving marriage, anotarial agreement was entered into between the parties whereby thedefendant agreed to secure to the plaintiff the payment of a monthly sumof Rs. 750 in consideration of the plaintiff undertaking to withdrawhis appeal to the Privy Council and to agree to the allowance of defendants'appeal from the order of the District Court refusing to enter decreeabsolute.
Held (in an action brought by the plaintiff to recover arrears ofmoney due under the agreement), that the agreement was enforceablein law and was not a collusive agreement and therefore not contraryto public policy.
The object of the agreement was to carry out the directions of thedecree and as such it did not amount to an adjustment of the decreewithin the meaning of section 349 of the Civil Procedure Code.
T
his was an action brought by the plaintiff to recover from thedefendant a sum of Rs. 11,500 with interest due upon an agreement
entered into between them under the circumstances set out in the head-note. The defendant pleaded that the agreement was a contract relatingto property of the wife made during coverture and was therefore unen-forceable. It was further pleaded that it was a collusive agreement madefor the purpose of obtaining a decree of divorce contrary to the justice ofthe case. It was also contended that it was in effect an adjustment of adecree of a Court within the meaning of section 349 of the Civil ProcedureCode, and, not having been certified, could not be made the basis of anaction. The learned District Judge gave judgment for the plaintiff.
Keuneman (with him D. W. Fernando), for defendant, appellant.—Thesettlement was induced by the promise not to oppose the decree beingmade absolute. This was part of the consideration. Plaintiff Utilizeddefendant’s desire for freedom in order to get a bigger amount. Any formof concert at any stage of the proceedings is against public policy(Carmichael v. Carmichael1). Condonation is on the same footing ascollusion (Hyman v. Hyman 2). There is nothing to compel a plaintiff to
get a decree nisi made absolute (Hulse v. Hulse3).
148 T. L. B. 133: (1857) 8 Dr G. M. and G. 731.
3 24 L. T. 847.
* 91 L. T. 361.
58
De Silva v. King.
[Garvin J. referred to section 605 of the Civil Procedure Code. TheCourt must make the decree absolute after the period has expired.]
Section CjI makes collusion at any stage of the action a bar. Duringthe progress of the action means at any stage before decree absolute.See also st . rion 606. Section 604 does not mention a fixed time afterwhich decree must be made absolute. Until the Court actually makesthe order the decree is not made absolute. An act of Court is necessary.It is only the petitioner that can move the Court (1875) 1 P. 56; Ouseyv Ousey l; Boddington v. Boddington 2
[Galvin J.—Section 605 does not recognize any such right in the. plaintiff.]
If the Court does' not make the order ex mero motu we are thrown backon the parties. A plaintiff who uses this right to gain an advantage isacting contrary to public policy.
Any arrangement not provided for by the Civil Procedure Code resultingin dissolution is invalid. Section 617 contemplates only a settlement ofproperty. If this is not a settlement of Nattandiya estate, it is bad. Itmay be that under the common law there is no want of capacity in thewife to contract (Soysa v. Soysa3). But this is illegal and against publicpolicy since as a result of this agreement the marriage is to be dissolved(71 L. T. 782). It does not matter whether the parties intended it or not.In English law no compromise is permitted unless the object of it is thatthe action should be dismissed (Cahill v. Cahill4). In Ceylon section 617defines the limits within which a compromise could be effected.
This is an adjustment or compromise of a decree and should have beencertified under section 349. Any variation made with the consent ofparties is an adjustment. (Sarkar, 9th ed. 1522; 9 S. C. C. 187;Laksaman Das v. Naroba5; Abdul Rahiman v. Khoja Khaki Aruth6.)
Hayley, K.C. (with him Canakeratne & E. B. Wikramanayake) for plaintiffrespondent.—The only questioh is whether the collateral undertakingnot to oppose the appeal is a collusive obtaining of the decree absolute.Our Code does not follow the English procedure. See section 605. InEngland numerous steps have to be taken by the plaintiff before he canget the decree absolute. (16 Hals. 592.) Under section 605 decree nisishall on the expiration of three months be made absolute. In these threemonths any person can show collusion on the part of the parties, that is,collusion in obtaining the decree nisi. The question of collusion is onefor the Court to decide on all the facts of the case, and not to be inferredfrom the terms of the document. (1913) P. 52; (1917) P. 28. An agree-ment is not necessarily contrary to public policy and unenforceable evenif it is sufficient to invalidate divorce proceedings. Even if the petitioneris the only person who can ask for the decree to be made absolute, if hedoes not take that step the respondent has the right to call upon him totake the step. (Ousey v. Ousey (supra).) . If he then does so, that cannotbe called collusion.
1 33 L. T. 789.
44 L. T. 252.a 19 N. L. R. 143.
* 49 L. T. 605.3 16 Bom. 589.‘ 11 Bom. 6.
GARVIN S.F.J.—de Silva v. King.
59
Section 349 refers only to Courts executing the decree. (Ramghulam v.Jank Rai*; Sita Ram v. McLhipal*). A judgment-debtor cannot pleadthat decree has been satisfied unless it has been certified. (Don Marthes v.Don Lewis3; Bristol Hotel Co. v. Power*.) This matter cannot be raisednow. It has not been raised in the answer. If it had, the plaintiff mighthave moved to certify the adjustment and withdraw the present actionunder section 406.
Cur. adv. vult.
Keuneman, in reply.
March 28, 1934. Garvin S.P.J.—
This is an appeal from a decree directing the defendant to pay to U •:plaintiff a sum of Ks. 12,118.75 with interest on Rs. 11,500 at 9 per cen..per annum from May 11, 1932, till the date of the decree and thereaft*on the aggregate amount at the same rate till payment in full. It w; ifurther decreed that the defendant’s claim in reconvention be dismissc :with costs.
The plaintiff and the defendant were at one time husband and wifi-.An action No. 10,899 was instituted in the District Court of Colombo bythe plaintiff for the dissolution of his marriage with the defendant on theground of adultery. On December 5, 1924, a decree nisi was enteredgranting the plaintiff a dissolution of the marriage and further declaringhim entitled to such a settlement of his wife’s property as would yieldan income of Rs. 1,000 a month. The defendant appealed, and by thejudgment and decree of the Supreme Court dated October 27, 1925, thedecree of the District Court dissolving the marriage was affirmed, but theorder of the District Court declaring the plaintiff entitled to a settlementsufficient to yield an income of Rs. 1,000 was set aside and in lieu thereofthe Supreme Court directed that the settlement be made to secure to theplaintiff a monthly income of Rs. 400. The plaintiff then applied forconditional leave to appeal to His Majesty in Council. At that stapr-the question of the dissolution of the marriage had been definitely settledso far at least as the parties were concerned, and the plaintiff’s purpose inentering an appeal to the Privy Council was to obtain relief from theorder of the Supreme Court varying the order of the District Court inregard to the settlement to be made on him. In the meanwhile,. thedefendant moved the District Court to enter a decree absolute dissolvingthe marriage. This was opposed by the plaintiff and on November 10,1925, the District Court dismissed her application upon the ground thatpending the appeal to the Privy Council it had no power to make theorder. The defendant then entered an appeal to this Court and while thisappeal and the appeal to the Privy Council were pending it was agreedbetween the parties that in lieu of a settlement sufficient to secure amonthly income of Rs. 400 as ordered by the Supreme Court, the defendantshould secure to the plaintiff the payment of a sum of Rs. 750 a month,which was approximately equivalent to half.the difference between theaward made in the Supreme Court and the award of the District Court.A written agreement bearing No. 326 and dated February 4, 1926, v.as
}.7.All. 124.3 UN. L. R. 31.
* 3 All. 633.-* 3 s. C. R. 16fi.
60
GARVIN S.P.J.—de Silva v. King.
then executed to give effect to this agreement, and the payments to bemade thereunder were .further secured by the mortgage and the hypothe-cation of property by the deed No. 329 dated February 18, 1926. Now,in consideration of the defendant's undertaking, the plaintiff agreed interalia to withdraw his appeal to the Privy Council and he also agreed toconsent to the appeal entered by the defendant from the order of theDistrict Court dated November 10, 1925, being allowed. In due coursethat appeal came before this Court and after argument it was held thatthe appeal to the Privy Council which was then pending did not in anyway affect the question of the dissolution of the marriage between theparties which had been determined by the decree nisi entered in the DistrictCourt and the confirmation of that decree in appeal to this Court. Itwas further pointed out that under the provisions of our Code the Courtis required to make the decree nisi absolute on the expiration of threemonths from the date of the decree nisi unless sufficient cause has beenshown in the meanwhile why the same should not be made absolute. Nosuch cause had been shown and, both parties consenting, it was furtherdirected that the decree be made absolute.
The claim in this action was based on the settlement evidenced by theagreement No. 326 of February 4, 1926, and the mortgage bond No. 329of February 18, 1926. The defendant who had paid the monthly instal-ments in terms of the agreement up to the end of December, 1930, and asum of Rs. 500 out of the instalment payable in respect of the month ofJanuary, 1931, thereafter failed to make any payments and is seeking torepudiate her obligations under this agreement upon the plea that it isnull and void and of no effect in law. A large number of pleas in supportof this contention were advanced in the Court below but in appeal learnedCounsel limited himself to the following: — (a) That the agreement is acontract between husband and wife in respect of or relating to propertyof the wife made during coverture and was, therefore, unenforceable,(b) that it was in effect an adjustment of a decree of Court and not havingbeen certified as such under the provisions of section 349 could not bemade the basis of an action, and (c) that this was a collusive agreementmade for the purpose of obtaining a decree of dissolution of marriagecontrary to the justice of the case.
Inasmuch as this agreement was made after the decree nisi but beforedecree absolute was entered it was urged that it was made at a time atwhich the parties must still be regarded as husband and wife. Assumingthis to be so, it has still to be shown, that an agreement such as the oneunder consideration is obnoxious to our law. Under section 13 of Ordi-nance No. 15 of 1876 it is provided that “ it shall be lawful for any husbandor wife …. notwithstanding the relation of marriage ….to make or join each other in making, during the marriage, any voluntarygrant, gift, or settlement of any property, whether movable or immovable,to, upon, or in favour of the other”. It would seem, therefore, thatunder the law in force in Ceylon there is nothing to prevent a wife enteringinto such a contract as the one now under consideration with her husband.This view of the law was affirmed by Their Lordships of "the’Piivy Council -in Soysa v. Soysa Learned counsel felt the difficulty of sustaining his
* 19 N. L. B. 146.
GARVIN SJ»J.—de Silva v. King.
61
position in the face of this judgment, but he drew our attention to section617 of the Civil Procedure Code which is one of a series of sections formingChapter 42 of the Code, relating to matrimonial actions. That sectionenables a Court when pronouncing a decree of dissolution of marriage onthe ground of adultery of the wife to order such a settlement as it thinksreasonable to be made of her property or any part thereof for the benefitof the husband or of the children or both. The section then proceeds asfollows:—“ Any instrument executed pursuant to any order of the courtat the time of or after the pronouncing of a decree of dissolution ofmarriage, or separation, shall be deemed valid notwithstanding theexistence of the disability of coverture at the time of the executionthereof”. It was urged as an inference from this provision that anyinstrument of that nature executed by a wife during the subsistence of themarriage except when executed pursuant to an order of Court must bedeemed to be invalid.
Now, many of the sections in this chapter have obviously been takenover from the corresponding provisions in the English Acts, and it ismanifest that the provision quoted above which is a provision made inthe English Acts was taken over by the draftsman. It is impossible toargue, as an inference from the circumstance that such a provision appearsin our Civil Procedure Code, that it was intended by the legislature toeffect so radical a change in the capacity of a wife in her relations withher husband or that it could ever have been intended to bring aboutwhat would in effect be a repeal of section 13 of Ordinance No. 15 of 1876.The provision, however, nevertheless exists, but its existence is notincompatible with section 13 of Ordinance No. 15 of 1876. The indi-cations, therefore, are either that the provision was taken over withoutproper consideration or that it was inserted out of greater caution toput the validity of an instrument so executed beyond all question.
The second point urged in support of this appeal depends firstly uponwhether the agreement referred to is an adjustment of a decree of Court,and secondly, if it is an adjustment whether it is the law that no actioncan be maintained upon it until the adjustment has been certified.Section 349 of the Civil Procedure Code provides as follows:-—“ If anymoney payable under a decree is paid out of court, or the decree is other-wise adjusted in whole or in part, to the satisfaction of the decree-holder,he shall certify such payment or adjustment to the court whose duty it isto execute the decree. The judgment-debtor may also by petition informthe court of such payment or adjustment, and apply to the court to issuea notice to the decree-holder to show cause on a day to be fixed by theCourt why such payment or adjustment should not be recorded as certified. . . . No such payment or adjustment shall be recognized by anycourt unless it has been certified as aforesaid ”. The argument addressedto us is that directly it appears to a Court that an agreement such as this isIn effect an adjustment-of a decree the Court is required by the concludingsentence of section 349 to refuse to entertain any action based thereon: – –
Section 349 above quoted is substantially the same as section 258 of theIndian Code of Civil Procedure of 1882 and the case of Hadi AbdulRahiman v. Khoja Khaki Aruthx, was relied on for the proposition that
1 7. L. R. 11 Bombay 0.
GARVIN SJP.J.—de Silva v, King.
no action will lie upon an adjustment which has not been certified to theCourt. But a careful examination of the judgment in that case does notappear to lay down anything like so extensive a proposition. The judg-ment is certainly an authority for the proposition that where theconsideration for the agreement is the adjustment of the decree, then noother evidence will be admitted to prove that the decree was adjusted orsatisfied except evidence that the adjustment had been certified asrequired by the section. It would seem, however, that the Allahabadand the Calcutta Courts have taken a different view of this section, and itwas held that upon a proper interpretation of section 258 the adjustmentof a decree out of Court not certified to the Court was under the provisionsof that section ineffectual only so far as the execution of the decree wasconcerned—See Ra.mghv.lam v. Janki RaiThe Indian legislature hassince amended section 258 by limiting the requirement of certification tothe Court executing the decree and thereby brought the anactment intoline with the law as declared by the courts of Allahabad and Calcutta.Indeed, our own section 349 is part of a chapter which relates to theexecution of decrees, and as in the case of the Indian section thiscircumstance lends some support to the contention that the Court whichis prohibited from recognizing an adjustment made out of Court unlessit has been certified is the Court executing the decree. But there is yetanother view of this provision. The words “ no such payment or adjust-ment shall be recognized by any court unless it has been certified asaforesaid ” may fairly be construed as meaning that “ no such paymentor adjustment shall be recognized by any court as a payment or adjust-ment of a decree unless it has been certified as aforesaid”. These wordsare in effect a rule of evidence which excludes every other evidence of thepayment or adjustment of a decree other than proof of certification.The section imposes a duty upon the judgment-creditor to certify thepayment or adjustment, but it also enables the judgment-debtor toobtain certification of any payment or adjustment and having thus madeprovision for the certification of payments or adjustments concludes withwords which I think carry out the object and the purpose of the enactmentwhen they are construed in the manner suggested. Had it been theintention of the legislature to empty an agreement valid and enforceableunder the general law and in all other respects unexceptionable of alllegal effect merely by reason of the circumstance that it was not certifiedas an adjustment under section 349 in any case in which the effect of theagreement or contract is to adjust an existing decree, it would, I think,have expressed its intention in very different phraseology, for if thelegislature intended that no action should under any circumstances bemaintainable upon an uncertified adjustment nothing could have beeneasier than to have said so.
Now the construction of this section as a rule which excludes anyevidence of the adjustment of a decree other than the certification pro-vided for by section 349 is in accordance with a judgment of our ownCourt—-vide Pitcha Tamby v. Mahamadu Khan’. That was an action forcontribution on the footing that the plaintiff had paid and satisfied a joint
11. L. R. 7 Allahabad 124.
*9 S. C. C. p 187.
63
GARVIN S.P.J.—de Silva v. King.
decree against himself and the defendants and it appeared that thepayment had not been certified as required by section 349. It was held thatthe effect of section 349 was to render the certificate the sole admissibleevidence of the satisfaction of the decree and tha. the plaintiff was-not entitled to recover. In the course of his judgment Burnside C.J.referred to this section as a very salutary provision and added “ and wemust not say that this was only accidental, but we must give it effect.The only evidence, therefore, of payment under a decree, either in wholeor in part, which we or any court can recognize, is that which is certifiedto as required by the section In any case in which it is essential fo-the success of an action to show that a decree had been satisfied oradjusted, all evidence other than evidence of certification would in thisview be excluded and the action must fail. This in my judgment is thecorrect construction and effect of section 349, and so far as we are con-cerned the matter is concluded by the judgment in Pitcha Tamby v.Mahamadu Khan (supra), which is a judgment of the Full Bench.
In this case it is in no sense necessary to the success of the plaintiff’saction that he should prove that any decree had been adjusted. Hisaction is based solely upon the agreement and despite the numerous pleasand objections advanced in defence it was at no time urged in the Courtbelow, or indeed before us, that the sole consideration for the agreementwas the adjustment of a decree and that such consideration had failed.Neither in the pleadings nor even in the issues was any such defenceadvanced, although it is to be gathered from the judgment of the learnedDistrict Judge that at some stage in the argument the plea was advancedthat this was an uncertified adjustment of a decree, and that as such noaction could be maintained thereon. It was based not upon any groundof failure of consideration but upon the general ground that any agreementmade out of Court, the effect of which was to bring about the adjustmentof a decree is unenforceable by action unless it be certified. In my viewof section 349 such a plea is not sustainable.
There is another aspect of this question which it is perhaps unnecessaryto consider in view of the opinion already expressed. It is a questionwhether the decree contemplated by section 349 is other than a moneydecree. The decrees which a Court may pass are classified under section217 as follows:—(a) To pay money; (b) to deliver movable property;(c) to yield up possession of immovable property; (d) to grant, conveyor otherwise pass from himself any right to, or interest in, any property;(e) to do any act not falling under any of the foregoing heads; (f) not todo a specified act, or to abstain from specified conduct or behaviour ;(g) declare a right or status, and in sections which follow a procedure isprescribed for the execution of each type of decree.
Now the provisions of section 349 would clearly be applicable havingregard to its terms, to the case of a decree to pay money, for the opening'words: “ If any money payable under a decree is paid out of court or thedecree is otherwise adjusted in whole or in part”, clearly contemplate inthe first instance a decree to pay money and when reference is made to anadjustment it is of “ the decree That would seem to have referenceto the opening words which contemplate a decree to pay money. This
64GARVIN S.P.J.—de Silva v. King.
at lea^t was the view taken of the corresponding provis/on -(section $5$of the /Indian Act) . See Sankaran Nambiar v. Kanara Kfiirui?, where theCourt* he^d that that section refers only to the exechtioqis of decreesunder., which money is payable. It is to be noted that the Indian sectionhas since been amended by the addition of words “ of any kind ” immedi-ately after the word “ decree ” in the first line thereof, so that it nowreads : “ If any money payable under a decree of any kind is paid out ofcourt”. Presumably this amendment was made to make it clear thatthe rule applies to other than what are strictly money decrees. Andlastly, it is a question whether the word “ adjustment ” can be appliedto an agreement in reference to a decree directing a person to do some actwhen the object and effect of the agreement is to carry out the directionin the decree, though at the same time going beyond the decree and doingmore than the judgment-debtor was directed to do. At the date of thisagreement the order which remained in force was the order of the SupremeCourt directing that a settlement be made to secure to the plaintiff amonthly income of Rs. 400 from the defendant's property during theirjoint lives. The effect of this agreement and the mortgage bond executedin terms thereof was to assure to the plaintiff an income of Rs. 750 amonth,* The defendant has, therefore, complied with the order of theSupreme Court. To the extent that she has gone beyond it, she did soin consideration of the plaintiff undertaking to withdraw an appeal to thePrivy Council as a result of which he hoped to obtain a restoration of theDistrict Judge’s order that the amount that should be secured to him bythe settlement should be Rs. 1,000 a month. It is not that the decree hasbeen adjusted but that the defendant has done all that she was directedto do.
It only remains now to consider the argument that this agreement iscontrary to public policy, entered into collusively for the purpose ofobtaining a decree of divorce contrary to the justice of the case. Noevidence whatever has been adduced before us save the agreement itself.Indeed, the only witness who testified in this case is a witness called bythe plaintiff. He was at one time the plaintiff’s proctor and acted forhim in the matter of this agreement. He tells us that a solicitor hadbeen retained and counsel briefed to appear for the plaintiff in the PrivyCouncil, and he states, among other things, that the plaintiff has carriedout the obligation imposed upon him by this agreement. Not a singlequestion was put to him in regard to this allegation of collusion. Theagreement then being the only evidence before us, is there anything in itor in its terms which indicate such collusion as would mark it as an agree-ment which is contrary to public policy and which the law will not enforce.
Now the agreement sets out in the fullest detail the whole history ofthis matter commencing with the institution of the proceedings for divorceand referring to every step of importance in its history up to the time ofthe decision of the appeal confirming the decree nisi for dissolution ofmarriage entered by the District Court on December 15, 1924, but varyingthe order as to the settlement. There is then a reference to the stepswhich the plaintiff had taken to appeal to the Privy Council from theorder made by the Supreme Court as to the settlement to which he wasentitled. The deed then states by way of recital “ And whereas the said
» 7. L. R. 22 Madras 182.
GARVIN SJ?J.—de Silva v. Kino.
Henry Peter '^hriptopher de Silva and Dorothy Margaret Catherine deSilva have agreed to effect a compromise regardng the monthly kllowancepayable to the said Henry Peter Christopher de Silva and to settle allmatters and disputes between them ”. It is to be noted that at the date ofthis agreement, namely, February 4, 1926, the decree for dissolutiongranted over a year previously by the District Court had been affirmedby this Court and the only matter really outstanding between the partieswas the matter of the settlement. The defendant then proceeds to agreeand bind herself to pay and to secure the payment to the plaintiff of thesum of Rs. 750 which was Rs. 350 more than the Supreme Court hadordered but which was Rs. 250 less than the amount ordered by theDistrict Court. Certain other incidental matters are then provided forand the plaintiff for his part agreed not to prosecute his appeal to thePrivy Council against the judgment of the Supreme Court.
Thus far there is nothing in the agreement to which counsel could" takeexception, but the plaintiff proceeded further to agree not to oppose theappeal entered by the defendant from the order of the District Judgerefusing to make the decree nisi absolute because in his view it was notwithin his power to do so while an appeal was pending to the PrivyCouncil. This is pointed to as evidence that the agreement was in effectone which had for its object the obtaining of a decree for dissolution ofmarriage, and as such vitiated the whole of it. But the dissolution of themarriage had already been decreed. By reason of section 605 of the CivilProcedure Code the Court is required to enter a decree absolute withinthree months of the date upon which the decree nisi was entered, that isto say, December 15, 1924, the contest in regard to whether the defendanthad committed adul'ery or not had been determined by that decree whichwould have been final but^for the appeal. But the appeal was finallydetermined by the decision of this Court dated October 27, 1925, and threemonths had elapsed from that date. During the whole of this period ofover a year no step had been taken under any of the privisions of the CivilProcedure Code to prove that the divorce had been obtained by collusionor by reason of material facts not having been brought before the Courtor the failure to bring to its notice any fact which might have affected thejustice of the case. It is not suggested that even at the date of thisagreement there was any fact or circumstance which should in the interestsof justice have been brought to the notice of the Court which had beensuppresed or that the parties had agreed to suppress any such facts. Thesole ground upon which the whole of this contention is based is that themere fact that the plaintiff agreed not to oppose an appeal which had forits object the obtaining of a decree absolute was itself evidence of suchcollusion as brings this agreement within the class of agreements that arecontrary to public policy.
Reference was made to the case of Hope v Hope but there the agree-ment which it was sought to enforce was one by which the plaintiffundertook “ not to oppose the suit for a divorce instituted against herby Mr. Hope in the English Courts, but on the contrary to facilitate theobtaining of such divorce”. If is hardly necessary to remark that thefacts of the case are wholly different from the one before us.
18 De G. M. <e O. 781.
36/8
GARVIN S.P.J.—de Silva v. King.
6-:
Another case to which reference was made was the case of Churchwardv. Churchward and Hollidayl, for the purpose of showing of what collusionconsists. The decision there was that “if the initiation of a divorce suitbe procured, and its conduct (especially if abstention from defence be aterm) provided for by agreement, this constitutes collusion, although itdoes not appear that any specific fact has been falsely dealt with orwithheld The agreement with which we are here concerned hadnothing to do with the initiation of a divorce suit nor had it any referenceto the conduct of it, but on the contrary was one which was entered intoby the parties long after the dispute had been determined by the decreenisi.
The later case of Scott v. Scott * was referred to by counsel for therespondent as showing the view of the Court that collusion which woulddeprive a party of the right to a decree nisi for divorce is defined to mean“ An improper act done, or an improper refraining from doing an act, fora dishonest purpose ”.
Among the other cases cited in the course of the argument was the caseof Carmichael v. Carmichael3. After the petition in that case had beenserved, a deed was executed which recited the proceedings and gave thecustody of the child to the petitioner so long as she remained unmarried,and then to the respondent. £.240 a year was to be paid to the petitionerdum sola et casta while the respondent remained in his present position,and, if his position altered, she was to have one-fourth of his gross income.The President, Lord Merrivale, after inquiry was satisfied that notwith-standing the agreement the petition was not a collusive petition, that theevidence was not collusively provided, and that although the husbandwas willing to be divorced there was no collusive arrangement betweenthe petitioner and the respondent. Having come to this conclusion, hepronounced a decree nisi granting the divorce.
It would seem, therefore, that the tendency of the divorce Courts whenconfronted with an agreement which suggests collusion is to claim theright to look into all the circumstances, and if satisfied that the proceedingsnevertheless were free from taint to allow the divorce.
Now there is not the slightest suggestion of any collusion or evenimpropriety in regard to the institution of these proceedings or theirconduct up to the time of the decree nisi and until its confirmation by theSupreme Court. And, moreover, there is not even a suggestion that therewas any collusion for any improper purpose at the time this agreementwas entered into. In consenting not to oppose the appeal from the ordermade by the District Court upon the defendant’s application for a decreeabsolute the plaintiff was only doing indirectly that which he was entitledto do himself. The sole object and purpose of his action was to obtain adissolution of his marriage, and at the time of this agreement all conditionshad been fulfilled which entitled him to a decree absolute. Since thedefendant had already herself taken steps to that end, I can see no
1 (1895‘> L. !■' • 1 n!i2 (1913) L. It. Probate Div. 52.
42 T. L. R. 133.
POYSER J.—de Silva v. King.
67
impropriety in the plaintiff consenting that such a decree should beentered. But in another view of the matter, it was essential that thedecree absolute should be entered whether the plaintiff had agreed to doso or not, before he could reap the benefit of this agreement or even thebenefit of the decree which the Supreme Court had entered in his favour.The order directing the defendant to make a settlement could only beenforced when the decree had been made absolute and the plaintiff couldonly obtain the benefit of the order when the decree was made absolute.So also, the settlement effected by the agreement and bond referred toappears to me to contemplate that the dissolution already decreed wouldbe made absolute. Assuming that the plaintiff had in effect agreed tomove the Court to enter decree absolute, he was doing that which he wasentitled to do and which he was bound to do before he could take thebenefit of this agreement or even of the order of the SupremeCourt.
There is nothing in the agreement or in the circumstances under whichit was entered into which would justify one in holding that it had anyimproper object or purpose or that it was contrary to public policy orunenforceable at law.
The appeal is accordingly dismissed with costs.
Poyser J.—
It is unnecessary to recapitulate the facts of this case which are fullyset out in the judgment of my brother Garvin which I have had theadvantage of reading.
In regard to the first point taken on behalf of the appellant, that theagreement No. 326 of February 4, 1926, is unenforceable as it was a contractbetween husband and wife relating to the property of the wife madeduring coverture, I agree that the case of Soysa v. Soysa1 definitelydisposes of this point, and I also agree that section 617 of the CivilProcedure Code is not incompatible with section 13 of Ordinance No. 15of 1876.
The most important point, in my opinion, which arises on this appeal,is whether the above agreement was a collusive agreement made for thepurpose of obtaining a decree of dissolution of marriage contrary tc thejustice of the case, and therefore contrary to the public policy.
The only ground upon which this argument is based is clause 6 of theagreement which provided that the plaintiff should consent to the appealof the first defendant against the refusal of the Court in D. C. Colombo,No. 10,899, to make the decree nisi absolute being allowed.
The procedure in regard to making a decree nisi absolute under section605 of the Civil Procedure Code is entirely different to the Englishprocedure. In England the application to make the decree nisi absolutecan only be made by the injured party, and if it be delayed the factthat the party in default desires a decree does not entitle him or her tomake such application. The remedy of such party is to have the suitdismissed for want of prosecution. See Ousey v. Ousey and Atkinson z.
119 N. L. R. U6.
a (1875-1876) L. R. Probate Die., Vol. I., 56.
68
POYSER J.—de Silva v. King.
■' —
Under section 605 either party may make this application and asGarvin J. points out in his judgment, allowing the appeal in D. C.Colombo, No. 10,899, S. C. Minutes of May 18, 1926, “ at the expirationof three months in the absence of any objection the Court is requiredto make the decree so entered absolute
The plaintiff, therefore, in agreeing not to oppose the appeal ofthe first defendant was only in effect consenting to an order he washimself entitled to and had in fact been entitled to before he enteredinto this agreement.
I agree with my brother that there is no impropriety in such an agree-ment, nor do I consider that any of the cases cited by counsel for theappellant support this contention that this agreement constitutescollusion between the parties.
The facts in the case of Churchyard v. Churchyard and Holliday ■were entirely dissimilar. In that case the President found that theinitiation of the suit was procured and its results as to costs and damagessettled by agreement and therefore held that there was collusion.
The case of Scott v. Scott 2 cited by counsel for the respondent is anauthority against the appellant’s contention. In that case a petitioningwife, who had already obtained a decree of judicial separation on theground of her husband’s desertion accepted the offer of a sum of moneyto be paid at once and a further like sum on decree absolute and anincrease of her allowance if she would proceed for a dissolution ofmarriage on the further ground of her husband’s adultery, the means ofproving which were furnished to her. Bucknill J. granted the petitionera decree and in the course of his judgment stated : “ It is quite clearthat she is entitled to a decree upon established facts unless she hasprevented herself from obtaining it by what I call misconduct for Iconsider that collusion amounts to misconduct. Collusion is an actdone by a petitioner with another person with an improper intention.In this case the petitioner was absolutely and entirely free from anydishonest purpose ”.
In this case also I consider the plaintiff was absolutely and entirelyfree from any dishonest purpose, and therefore I agree that there isnothing in the agreement to justify the appellant’s contention that it wasentered into with an improper object or that it was contrary to public policy.
In regard to the argument that the agreement was in effect anadjustment of a decree of Court and not having been certified as suchunder section 349 of the Civil Procedure Code was not actionable,
I consider the effect of that section is to render an agreement, whichhas the effect of an adjustment of a decree and is not certified, ineffectualonly as against the execution of the decree, and in my view there isnothing in that section which debars a party to an agreement insupersession of a decree from suing on such agreement, and this view issupported by local authority, viz., The Bristol Hotel Company Limited v.Bower *, in which Withers J. held that where a judgment-creditor enters
1 (1895) L. li. Probate Div. 7.* (1913) L. R. Probate Div. 52.
3 3 Supreme Court Rep. .198.
Delivered by LORD THANKERTON.—Mvttu Mohammado v. Ramasumy Chetty. 69
Into an agreement with his debtor superseding the decree, such judgmentcreditor is not entitled to a writ under the decree. He must either suethe debtor on his agreement in supersession of the decree, or, if he wishesto execute it, as a decree, he must have it certified of record as an adjust-ment under section 349 of the Civil Procedure Code.
I agree that this appeal should be dismissed with costs.
Appeal dismissed.