Gopal Sti Ram JCA:

[1] We heard this appeal on 15 February 1995, and, at the conclusion of argument, reserved judgment. Our conclusions and the reasons for them are now produced. For ease of reference, the parties before us will, in this judgment, be described as plaintiff and defendant respectively, although, there were ten defendants in the Court below (nine of whom are not before us) and the respondent to this appeal is the ninth defendant. Also, all references in this judgment to rules of Court are to the Rules of the High , 1980 unless otherwise stated.

The Background

[2] The plaintiff, although its name may not so suggest, is a licensed lender of money. The defendant is one of the guarantors of a loan advanced by the plaintiff to the first defendant in the Court below. There was default in repayment of the principal and interest. So the plaintiff, on 22 August 1985, launched an action by a writ of that date. The guarantee executed by the defendant gave an address as his. The plaintiff attempted service of the writ at that address with no success. Encik Anantham, who appeared for the plaintiff on this appeal, complained that the difficulties encountered by the plaintiff in effecting service were occasioned by the defendant changing his address and his failure to keep the plaintiff informed of that change. Because of the conclusion we have arrived at, we are spared the burden of having to deal with this complaint and Encik Augustine Nathan's most persuasive response to it, although we will mention that response at the appropriate place in this judgment.

[3] Faced with the inability of effecting personal service, the plaintiff, on 8 January 1986, obtained an order for substituted service by means of posting a copy of the process at the defendant's last known address and by advertising it in the usual way. Service in terms of that order was effected on 13 January 1986. No appearance having been entered, the plaintiff entered judgment in default against the defendant on 20 May 1986. Apparently, the defendant had heard nothing of all this until much later.

[4] Encik Nathan informs us that the plaintiff took out bankruptcy procedings based on the judgment in default and it was only then that the defendant took steps to have the judgment in default set aside. There is evidence on record, relied upon by both sides before us, to show that the parties entered into negotiations to resolve the dispute. Counsel for the plaintiff suggests that the upshot of those negotiations was an acknowledgment of the debt, whilst Counsel for the defendant strenuously argues that what was arrived at amounts to an agreement to pay and to accept a lesser sum. Happily, we are, for reasons that will soon become apparent, also spared from dealing with these arguments.

[5] The defendant's application to set aside the default judgment was filed on 21 August 1992, some six years and three months after the entry of judgment. That application was heard and an order in terms of it made on 7 June 1993. The learned Judge gave written reasons for his decision. His judgment is reported in [1993] 4 CLJ 48 to which our attention was correctly drawn by Encik Nathan. We are grateful to him for doing so. The Judge found tile order for substituted service of the writ to be fatally flawed on grounds now no longer relevant. Because of this he set aside the default judgment ex dehito justitae. The plaintiff did not appeal against that decision.

[6] The finding of the learned Judge that that order for substituted service was bad carried serious consequences for the plaintiff. It meant that the service of the writ under a defective order was bad and that the writ had never been served at all. It then followed that the writ had, at the end of twelve calendar months from the date of its issue, which is the life given it under the rules, expired and was now no longer available to be validly served. Finally, there is the bar in the rules about the making of more than one order