1. This application comes before me in the following circumstances : On 26th June 1933, the wife who is the petitioner in the proceedings obtained a decree of judicial separation on account of her husband's adultery. At the time the decree was made, the learned Judge who heard the petition made an order clearly under the provisions of Section 37, Divorce Act, that the husband should pay his wife a monthly sum of Rs. 100 for her maintenance. The husband has apparently regularly carried out the order and made payments punctually. The husband's occupation is that of a permanent way inspector on the East Indian Railway. He is domiciled in India and in the early part; of this year he applied for leave out of India, and his application was granted. On 5th April 1937 the wife having come to know of the application for and sanction of the husband's leave, took out a notice of motion, asking that the alimony of Rs. 100' a month payable under the order of 26th June 1933 should be secured in such manner: as the Court thought proper. There was also a prayer that the husband: should be restrained from withdrawing his provident fund from the Railway. On 7th April 1937, the husband's bankers, Messrs. Thos. Cook & Sons, wrote a letter informing the wife that they had been instructed to pay her Rs. 100 a month during the husband's absence.
2. The husband sailed for England on 8th April 1937 having instructed his solicitors to oppose the application for security. The application was adjourned from time to time and finally it was disposed of by me on 5th July 1937 when I directed that the husband should furnish security for the alimony payable under the order of 26th June 1933, to the satisfaction of the Registrar by 15th November 1937. I have no clear recollection of the points urged on the husband's behalf of the application, but as far as I can remember no point of law-was taken, but it was pointed out that the husband had regularly paid alimony since the date of the order, and an affidavit was put in when it was stated on oath that he intended to continue to pay, and that his purpose was to return to India at the conclusion of his leave and resume his employment. He returned to India in the first week of November and on 9th November 1937 he took out a notice of motion. The notice is in the following form:
3. That the order dated 5th July 1937, so far as it relates to the furnishing of security by the applicant be set aside on his undertaking to pay alimony month by month regularly, and that the applicant be exempted from furnishing security.
4. The order of 5th July 1937 has not been drawn up or filed. The point on the merits taken by Mr. Clough on behalf of the husband is that the Court had no jurisdiction to make an order of the nature I made on 5th July. I have read Section 37, Divorce Act, and it cannot be suggested that there is any other statutory enactment under which the order could be made, and I have come to the conclusion that Mr. Clough's contention is correct. The provisions of the Divorce Act and those of the Supreme Court of Judicature Consolidation Act 1925, in which the English statute law as regards matrimonial matters is now to be found are not in identical terms : but nonetheless I have been able to derive considerable assistance from the judgment of Hill J., in Shearn v. Shearn (1931) LRP 1.
5. Under Section 37, Divorce Act, the High Court may, if it thinks fit inter alia, on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her own life as having regard to her fortune (if any) to the ability of the husband and to the conduct of the parties, it thinks reasonable, and for that purpose may cause a proper instrument to be executed by all necessary parties. The) power to make any order on the husband to secure a gross sum or annual income for the wife can only be exercised on the pas-sing of the decree. There is a similar-limitation on the powers of the Supreme Court in England with regard to decreed for dissolution. That limitation is noticed by Hill J. in his judgment in Shearn v. Shearn (1931) LRP 1 and he observes that the cases have shown that some latitude is allowed in determining whether the application is made 'on' the decree: but it; has not been argued, and I conceive it could not be argued, that on a right interpretation of the word 'on' the Court has power to order the husband to furnish security over, four years after the decree for judicial,
6. It seems to me clear that the power given to the Court is that when it has decided what in the circumstances is the proper sum for the maintenance of the wife, it can order the husband to secure part of that sum and can make a payment order for the balance. What however the Court cannot do is what I through inadvertence did here, namely direct performance by the husband of a payment order to be secured. I, therefore, am of opinion that the order I made on 5th July was wrong and one which I had no power to make.
7. The question remains whether sitting here it is within my powers to correct what I consider to be the mistaken order that I made. Had the order been drawn up and filed, I am of opinion that the only remedy open to the husband as far as my Court is concerned would have been to apply for a review of judgment, and indeed Mr. Clough suggested at one time that I should treat this application as one for a review. With regard to that suggestion I cannot help observing that the form of the application does not observe the requirements as to applications for review as set out in Rules 34 to 38 of Chap. 32 of the Original Side Rules. That possibly is a technical matter which might be overcome by ingenuity. A more serious difficulty in the way of treating this application as an application for review is that it is as such barred by limitation. The period for an application for review is 20 days from the order which it is sought to review. It is no use for the husband to say that the order has not been drawn up because it is now well settled that if a party who has obtained an order fails to apply to have it drawn up within four days of the making of the order, the party against whom it is made can so apply, and if he fails to apply the period of limitation begins to run against him. It is true that Section 5, Lim. Act, is applicable to review proceedings, but no proper application has been made to me to make an order under Section 5, and if such an application were before me I feel considerable doubt whether I should be justified in holding that I am satisfied that the applicant had sufficient cause for not making the application within the time prescribed, or at least for not making it at a considerably earlier stage than this. How-' ever, it appears to me beyond question that before an order is drawn up and filed, a Judge has power to vacate if he thinks fit to do so.
8. In Sarupchand Hukumchand v. Madhoram Raghumull reported in : AIR1925Cal83 it was suggested that a Judge had no power to vacate his order if it was one dismissing the suit. Buck-land J. did not assent to that argument and vacated an order for dismissal made by him under Ch. 10, Rule 36 of the Original Side Rules. It is clear from the judgment that it was not suggested that the Judge had no such power with regard to orders generally, but it was urged that an order of dismissal is in exceptional position.
9. As to the powers of the Court generally there is abundant authority to be found in the Annual Practice and my attention has been drawn to the observations made by Jessel M.R. in the course of argument in In Re: St. Nazaire Co. (1879) 12 Ch D 88. That being so, I have discretion to vacate the order which I consider I should not have made. I think it is true that the responsibility for not calling my attention to this aspect of the matter at the time of the original application falls on the husband, and I also am of opinion that he should have arranged to take steps to vacate or vary the order made at an earlier stage; at the same time I do not think this is a reason for permitting the wife to continue to take the benefit of an order that ought not to have been made. Moreover, I cannot help bearing in mind the history of the case since the order. I should never have made an order for security had the husband not been proceeding on leave out of India, and had I not thought that there was at least a possibility that he would not return at the expiry of his leave that in consequence the wife might have difficulty in obtaining payment of the amount ordered to be paid. It now turns out that the husband is back to India and has resumed his employment, and in view of his past record in the matter, I see no reason to suppose that he would not continue to make the periodical payments in the future as he has done in the past. In these circumstances I vacate my order of 5th July except as regards costs. I also direct that the husband should pay the costs of this application as he is responsible in my opinion for the trouble.