( 447 )
Present: Pereira J. and Ennis J.
HELENA HAMINE et al. v. NONAHAMY et al.
60—D, G. Colombo, 33,043.
Married woman—Locus standi in jadicio—Judgment in favour ofhusband and wife—Joint judgment-creditor.
Under the Bom&n-Dutch law a married woman has no locusstandi in judicio, but where, rightly or wrongly, a wife is broughtin, as a separate party, to a case along with the husband, andjudgment is entered in favour of both, she has all the rights andprivileges of a joint judgment-creditor, and it is not open to thehusband to enter into a compromise with the judgment-debtoror receive payments from him to her prejudice.
rjl HE facts appear from the judgment.
A. St. V. Jayewardene (with' him Ganakeratne), for defendant,appellant.—A wife has no locus standi in judicio (Voet 5, 1, 14).A judgment in favour of the wife is a chose in action, and vestsabsolutely in the husband. The discharge granted by the husbandoperates as effectively against the wife as against the husband.
Arulanandam, for first plaintiff, respondent.—Our husband is inbad terms with us, and has acted collusively with the defendantto deprive us of the benefit of the decree. The Roman-Dutch lawgrants relief in analogous cases. If our husband withheld hisauthority we could have obtained the authority of Court to suealone (Voet 1, 5, 16). The defendant has not applied, under section349 of the Civil Procedure Code, to have satisfaction of decreecertified, and we are therefore entitled to proceed with the executionof the decree in our favour.
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
July 2, 1914. Pereira J.—
In this case the plaintiffs are wife and husband. They aredescribed in the caption of the plaint as (1) Dona Helena assistedby her husband (2) Punchi Singho Appuhamy. The plaint withthis caption should not have been accepted, because in a legalpoint of view there is no sense in the word “ assisted by her hus-band ” as used in the plaint. Perhaps they were intended to showthat the real plaintiff in the case was the first (Dona Helena);but the words were insufficient to give the husband, who was namedand numbered as a separate plaintiff, a minor or subordinate positionin the case. Anyway, the decree in the case was entered in favour.
( 448 )
of both the plaintiffs, and on July 2, 1912, their application forexecution was allowed, and an order issued to the Fiscal to realizethe amount of the judgment by the sale of the property mortgagedby the defendant. The property was accordingly sold and pur-chased by the first plaintiff, in whose favour a conveyance was dulyexecuted. The defendant has since moved, on notice to the plaintiffs,that the sale in execution be cancelled, and satisfaction of the decreebe recorded as certified in terms of section 349 of the Civil ProcedureCode. The present appeal is from the District Judge’s orderdisallowing the application. The reason given by the defendantfor his application is that he on August 30, 1912, by deed No. 3,688,transferred the mortgaged property to the second plaintiff in fullsettlement of the claim against him in the case. It has beenargued that the second plaintiff, being the husband of the first,was at liberty to come to any arrangement with the defendantand discharge him from all liability on the decree, and authorityhas been cited that shows that a wife has no locus standi in judicio,and that it is for her husband alone to appear for her in Court.As a rule, that is no doubt a correct proposition, but where a wife,rightly or wrongly, has been brought in as a separate party to acase, and judgment has been entered in her favour, she is entitledto all the rights and privileges of such a party. Voet lays down(5, I, 19) that if a woman, contrary to the provision of law, appearin a judicial proceeding and succeed therein, the judgment pro-nounced in her favour will hold good. With reference to the decreein this case, the first plaintiff as a party to the case had equal rightswith the second; and in the case of joint decree-holders, one cannotenter into a compromise or receive payments to the prejudice ofthe others (see the cases collated at page 538 of O'Kinealy’s Codeof Civil Procedure, 5th edition), although possibly where the shareof each is admitted one may receive his own share. In the presentcase there is no such admission: the plaintiffs are merely jointdecree-holders. For this reason, if no other, the defendant wasnot entitled to succeed. There are, however, other reasons as well.The defendant * omitted to have the alleged satisfaction of thedecree certified, and the execution proceedings were therefore inorder. The defendant has, moreover, as held by the District Judge,acted in collusion with the second plaintiff to defraud the first.
I would dismiss the appeal with costs.
Ennis J.—I agree.
HELENA HAMINE et al. v. NONAHAMY et al