084-NLR-NLR-V-02-JUAN-APPU-v.-DIOGU.pdf
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JUAN APPU v. DIOGU.D. C., Negombo, 1,965.
Husband and wife—Claim, by wife to land decreed to plaintiff in actionagainst husband—Civil Procedure Code, s. 328.
Where in an action against a husband for the recovery of certainland a decree was entered against him, and in execution the wife,who was in possession of the land, was removed therefrom, andshe petitioned the Court under section 328 of the Civil ProcedureCode, held, that she was entitled to have her petition inquired into,and her right to the land decided.
r | THIS facts of the case appear in the judgment of Bonseb, C.J.
Van Langenberg, for appellant.
Wendt, for respondent.
14th October. 1896. Bonseb, C.J.—
This is an appeal from an order made by the District Judge ofNegombo dismissing the appellant’s petition. The appellant is amarried woman. Her husband was the defendant in a suit broughtby the respondent to recover certain lands. The appellant was noparty to that action. Her husband disclaimed title, and a decreewas made against him, and in execution of that decree the appellantwas removed from the land. She asserts that the land is her ownseparate property ; that she purchased it in 1892 ; and that herhusband has nothing to do with it. She therefore presented apetition under section 328 of the Civil Procedure Code to establishher right. The District Judge refused to entertain this petition onthe ground that she ought to have intervened in the action againsther husband. He says that it is merely splitting hairs to say that.she was not a party to the suit, and that she was not bound by thedecree. As a matter of fact she was not a party, and I do not seehow she could have insisted on her being made a party. She isentitled to have her right to this land decided, and the DistrictJudge was wrong in dismissing her petition. The case is remitted tothe District Court for trial. The appellant will have her costs of theappeal.
Lawree, J.—
I agree. The wife is not estopped either by the decree or by her
conduct from raising the question of'her ownership to the land.
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1888.
October 14.