Good J:

This is a motion to set aside the judgment of Buhagiar, J given on 3 July 1954, in this suit; the judgment was for the sum of $28,594.71 with interest and costs, and was a judgment in default of defence.

The defendant, who is the applicant in the present proceedings, was sued as Administrator of the estate of his deceased father, but the judgment was expressed to be given against "the defendant" simpliciter and not in his representative capacity.The applicant's ground for making the present application is that the judgment was irregular as it ought to have been a judgment de bonis testatoris and not a judgment de bonis propriis.

There is abundant authority for the contrary proposition - Labouchere v. Tupper, 14 ER 670 Farhall v. Farhall 7 Ch. App 123 and Ang Chee Seng v. Tan Kee Swee [1935] MLJ 245.

Mr. Arulanandom, for the applicant, relied on Evans v. Bartlam [1937] 2 All ER 646 as authority in support of the absolute discretion of the Court to make the order prayed for, and he relied on Atwood v. Chichester [1878] 3 QBD 722 as authority for the proposition that lapse of time is no bar to this application. I agree with him so far as the effect of Atwood v. Chinchester, supra is concerned, but it appears to me that the Court's discretion must be exercised in accordance with the settled principle that if the judgment is a regular judgment then it is an almost inflexible rule that there must be an affidavit of merits stating facts showing substantial ground of defence - Hopton v. Robertson [1884] W N 77 and Farden v. Richter [1889] 23 QBD 124.

On the authority of Farhall v. Farhall, supra, Labouchere v. Tapper, supra, and Ang Chee Seng v. Tan Kee Swee, supra, it is clear that the judgment was a regular judgment and there can be no merits in the application to set it aside.

In Civil Suit No. 239 of 1957, [1958] MLJ 269 the plaintiffs sued the defendant for the amount still owing to them after the sale of certain assets secured by a Bill of Sale; Barakbah J held that the matter was res judicata in the present suit by reason of Buhagiar J's judgment, and that that judgment was against the defendant personally. I respectfully agree and would refer to the case cited by Barakbah, J in his judgment, S Supramaniam Pillay v. Tan Kah Kiat, [1934] 1 MLRH 91, [1934] MLJ 133, from which it appears that there are no ground whatever for holding that Buhagiar, J's judgment was irregular and no merits in the application to set it aside.The application is therefore dismissed with costs.

Application dismissed.