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BABAPULLE v. RAJARATNAM
NLR4V348
BABAPULLE v. RAJAKATNAM et al.
D. C., Colombo, 10,344.
Action on promissory note granted by husband and wife-Default of wife, to-appear-Judgment entered against wife after husband's appearance to-defend-Invalidity of judgment.
When a husband and wife are sued on a joint promissory note, and the husband has obtained leave to appear and deferred, no judgment can be entered against the wife for non-appearance, because by her legal guardian appearing she cannot be said to be in default.
THE plaintiff sued his daughter, the second defendant, and her husband, the first defendant, for the recovery of a sum of Rs. 5,000 due upon a promissory note made by them in favour of plaintiff on the 29th March, 1897.
The second defendant did not appear, and judgment was entered against her.
The first defendant filed answer admitting the debt due on the promissory note, but claimed in reconvention a sum of Rs. 8,000, which he alleged become payable to him in respect in a marriage contract entered into between the plaintiff and the two defendants. It appeared that by a deed dated 25th November, 1896, the plaintiff, in consideration of the first defendant marrying the second a fendant, the daughter of the plaintiff, covenanted with them to give to his daughter (the second defendant) within six months after her marrying the first plaintiff, on their joint request, certain jewellery and a house in Barber street, Colombo, in addition to another land in Jampettah street already conveyed to the daughter, and to build at a cost of Rs. 2,000 a Louse on the land in Jampettah street, and it was reviled in the said deed: -
" If the said Babapulle (plaintiff' shall fail, refuse, or neglect within six months after the marriage of Rajarathnam and Maria Babapulle (defendants), on their joint request, to deliver the said jewellery, or to convey the said house in Barber street, or to build at a cost of Rs. 2.000 a house on the land in Jampetah street, he shall pay to the said Maria Babapulle (second defend ant), in case of default occurring in respect of the jewellery, Rs. 2,500; and in case or default occurring in respect of the said house in Barber street, Rs. 8,000 being. he value thereof; and in case of default occurring in sheet of the holding of the house in Jampettah street, Rs. 2.000."
The marriage of the defendants took place on the 25th November, 1896, and the plaintiff, though thereto requested, failed to convey the land to the second defendant. The first defendant thereupon claimed the sum of Rs. 8,000, as due to him personally under section 10 of the Ordinance No. 15 of 1876.
On the day of trial it was contended for the first defendant that, as plaintiff had already obtained judgment against the second defendant, he was not entitled to proceed further with the action against the first defendant. McLeod v. Power, L. R. 2 Ch., Div. 295 (1898), was cited in support of this objection.
Browne, D.J., overruled it in these terms:-
" I hold that the decision in McLeod v. Power is not applicable , as there the writ was not specially endorsed. It could not be, because the claim was not one pure and simple for such a demo or liquidated demand as may under order 3, rule 6, be sued for by a specially endorsed writ, but was, inter alia, for damages for detention of shares and alternatively for specific performance of certain agreements. The debt in the present action is sued for by our procedure analogous to the English specially endersed writ. All the remarks made by Byrne J., inimical to the defendant's contention there because the writ was not specially endorsed, apply here in favour of the plaintiff, where (as I may say) it was the special exception made in a plaintiff's favour by order 14, rule 5, where in an action by specially endorsed writ one defendant has not leave to defend and has judgment marked against him. That the plaintiff is not thereby prejudiced in his right to proceed with his a
