McElwaine CJ:

Poyser CJ

This is a motion to set aside the following decree entered by this Court on 15 January 1940, viz:

Upon hearing Mr. v. Mackie of Counsel for the plaintiff and Mr. M N Cumarasami of Counsel for the first, second and third defendants, and upon reading the summons for judgment dated 10 January 1940 the certificate of nonappearance dated 10 January 1940, and the affidavit affirmed by KR PR PL SM Somasundaram Chettiar on 9 January 1940, IT IS ORDERED that each of the first, second and third defendants do pay to the plaintiff and the fourth defendant the sum of $7,848.55 with interest on such sums from 12 February 1939, until payment at the Chettiar current account rate prevailing in Kuala Lumpur. AND it is ordered that the one-fifth beneficial interest of the first, second and third defendants in the following lands or so many of them as shall be necessary to realise the said three sums of $7,848.55 interest and costs, be sold by public auction under the directions of the Court namely the lands held under Selangor Grants Nos 2971, 2972, 3184, 3185, 3186, 3241, 3242, 3977, 3981, 3982, 4244, 4557, 4729, 4730, 4731, 4732,4733, 4736, 4737, 4739 and 5056; Selangor Grant No. 5304; Perak Grants Nos 7845 and 9423; and Peretak Mukim Mining Leases Nos 3736,

3737 and 3766, AND it is also ordered that the first, second and third defendants do pay the costs of the plaintiff as taxed by the officer of the Court. "The affidavit in support of the motion set out, inter alia, that the copy of the summons and plaint in the suit were not received by the first, second and third defendants until 13 December 1939, that on the following day they applied by cable to the Registrar for an adjournment which was refused, and that they then instructed Mr. Cumarasami to appear for them, but the latter only received such instructions on 15 January 1940. Mr. Cumarasami did appear before Gordon- Smith J on 15 January and, apparently, asked for an adjournment which the Judge refused. No formal appearance has been entered by or on behalf of the defendants at any time. Mr. Hastings, in support of the motion, relied on Redditch Benefit Building Society v. Roberts [1940] 1 AER 342. In that case the Court of Appeal held that judgment ought not to be entered in default of appearance when the defendant is before the Court, and whether he has technically appeared or not, is present and anxious to put himself in a position to defend the action - (this case was not decided when Gordon-Smith J, entered judgment for the plaintiff). Mr. Hastings argued that the judgment purports to be a judgment in default of appearance, and sets out that a certificate of non-appearance was filed. The fact, however, remains that there was an appearance on behalf of the defendants, and that being the case, I think the remedy of the defendants, if any, is by way of an appeal to the Court of Appeal. The motion, therefore, will be dismissed, but such dismissal will be without prejudice to any application by the defendants to the Court of Appeal to appeal out of time or obtain other relief. I should also state that I did not hear Mr. Shearn on the merits, and express no opinion as to whether the decree should or should not be set aside. I only express the opinion that, sitting by myself, I have no power to set it aside. The motion is accordingly dismissed with costs.

On 31 July 1939, the respondent filed a statement of plaint against the appellants and two others in which he claimed $23,545.67 seeking to hold each of the appellants liable for one-third of that sum. He also claimed other relief.

At all material times the appellants were resident at known addresses in India.

On 8 August 1939, an order (a copy of which was not included in the record) was made for the service of that order, the summons and the plaint on the appellants out of the jurisdiction. This order did not provide for substituted service.

The process-server of the Court of the Subordinate Judge