[IN THE PRIVY COUNCIL]

1936 Present : Lord Atkin, Lord Maugham, and
 Sir Sidney Rowlatt.

HULME-KING v. DE SILVA.

Husband and wife-Action for divorce-Decree nisi in favour of husband with order for settlement out of wife's property-Appeal from decree- Settlement pending appeal and before decree nisi was made absolute Validity of agreement-Married Women's Property Ordinance, No. 18 of 1923, s. 5-Adjustment of decree-Civil Procedure Code, s. 349.

The plaintiff-respondent obtained a decree nisi for divorce against his wife the defendant-appellant on December 15, 1924. By that decree the plaintiff further obtained a direction that a settlement be made out of the property of the defendant to secure to him a monthly income of Rs. 1,000; and also a sum of Rs. 10,000 damages against the second defendant, the co-respondent. From the decree all parties appealed. On October 27, 1925, the Supreme Court varied the decree of the District Court by reducing the monthly income to be secured to the plaintiff to the sum of Rs. 400 and the damages payable by the correspondent to Rs. 2,500.

On November 30, 1925, the plaintiff, who was dissatisfied with the reduction of the monthly income secured to him, obtained from the Supreme Court conditional leave to appeal to the Privy Council against the judgment of the Supreme Court.

On November 6, 1925, the defendant-appellant applied by motion in the District Court of Colombo that the decree nisi of divorce be made absolute in accordance with sections 604 and 605 of the Civil Procedure Code. The plaintiff-respondent objected to the motion on the footing of the proposed appeal to the Privy Council and the District Court declined to make the decree absolute.

At this stage the disputes between the plaintiff and the defendants were compromised by an agreement No. 326 dated February 4, 1926, which was notarially attested. Under it the defendant agreed, inter alia, to pay to the plaintiff Rs. 750 per mensem and to execute as security for such payment, a primary mortgage of certain property belonging to the defendant. The plaintiff also agreed that he would consent to the appeal of the defendant against the order of the District Court refusing to make the decree nisi absolute being allowed. On February 18, 1926, mortgage bond No. 329 was executed by defendant's attorney in compliance with the agreement.

Held, (in an action brought by the plaintiff to recover arrears of money due under the instruments) that the agreement was not contrary to public policy.

Held, further, that the agreement was enforceable although it was entered into before the decree nisi was made absolute, and whilst the relation of husband and wife still subsisted between the parties. Under section 5 of the Married Women's Property Ordinance, No. 18 of 1923, the wife is under no disability as regards coverture in entering into such a settlement with her husband.
There is nothing either in the law or practice to prevent an application, under sections 604 and 605 of the Civil Procedure Code for the making of a decree absolute, being made by the innocent or by the guilty spouse.

The provisions of section 349 of the Civil Procedure Code regarding the certification to Court of a payment or adjustment of a decree out of Court apply only to decrees for payment of money and the agreement was not an adjustment of a decree which required to be certified in terms of section 349 of the Civil Procedure Code.

APPEAL from a judgment of the Supreme Court. [* 36 N. L. R. 57.]

February 27, 1936. Delivered by LORD MAUGHAM.-

This is an appeal from a decree of the Supreme Court of the Island of Ceylon dated March 28, 1934, affirming a decree of the District Court of Colombo dated April 5, 1933. The action was one in which the respondent was the plaintiff and the appellant was the defendant. The respondent was the husband of the appellant until the decree absolute pronounced by t