JUDGMENTBY: POYSER, CJ, MCELWAINE, CJ, TENRELL, JA, CUSSEN, J

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

"Upon hearing Mr. V. Mackie of counsel for the plaintiff and

Mr. M. N. Cumarasami of counsil for the 1st, 2nd and 3rd

defendants, and upon reading the summons for judgment dated the 10th

day of January, 1940, the certificate of non-appearance dated the 10th

day of January, 1940, and the affidavit affirmed by KR. PR. PL. SM.

Somasundaram Chettiar on the 9th day of January, 1940, IT IS ORDERED

that each of the 1st, 2nd and 3rd defendants do pay to the plaintiff

and the 4th defendant the sum of $ 7,848.55 with interest on such sums

from the 12th day of 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 1st, 2nd and 3rd 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 1st, 2nd and 3rd 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 1st, 2nd and 3rd defendants until the 13th of 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 the 15th January, 1940. Mr. Cumarasami did appear before Gordon-Smith, J., on the 15th of 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.

BJP Joaquim and MN Cumarasami for appellants (defendants).

ED Shearn for respondent (plaintiff).

MCELWAINE, CJ On the 31st 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 materia

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