Howes J:

In this summons (as amended at the hearing before Murray-Aynsley J, on 18 March 1940, by Mr. Ong, Counsel for the applicant, by the withdrawal of the first portion thereof; such withdrawal being confirmed by Mr. Teh at the hearing before me in Court on 1 May 1940), the applicant VRMLRM Letchumanan Chettiar applies for leave to institute against Leonard James Peace as Receiver and Manager, a suit for the recovery from him as such Receiver and Manager, of the property belonging to the partnership business of "LRM and LN" (hereinafter referred to as the "old firm") the decretal amount in Suit No. 92 of 1937.

In support of the summons, the applicant filed an affidavit, sworn on 29 February 1940 (178). In this he seeks to show that the decretal amount of $3,520 interest and costs recovered against him and the fourth defendant, LRM Muthukaruppan Chettiar, jointly as partners in the firm of LRM, by one Ramasamy, in Ipoh C S 92 of 1937, on a promissory note made by their agent, LRM Subramaniam Chettiar (now deceased) in favour of Ramasamy, was in fact a debt of the "old" LRM firm of which Mr. Peace is Receiver and Manager.

The applicant now applies for leave to institute a suit against the receiver to recover this amount: or (his Counsel now says) to be indemnified by him against the applicant's personal liability for this debt.

At the first hearing of the summons by Murray-Aynsley J, on 18 March 1940, it was adjourned into Court. The applicant took no steps to obtain a hearing date until the 10 April 1940, when his solicitors wrote a letter (188) to the

Registrar, and as the result the hearing was fixed for 1 May 1940. Meanwhile, on the sixth April, the applicant had sailed for India, and is still out of the jurisdiction. On 15 April 1940, Mr. Sharma solicitor for the receiver also wrote to the Registrar, asking for an early date to be fixed.

On 24 April 1940, Mr. Sharma through the Court sent a notice (195) of his intention to cross-examine the applicant on his affidavit of 29 February 1940. This notice, signed by the Registrar and sealed with the seal of the Court, required the applicant to attend before the Court on 1 May 1940, for this purpose.

In consequence of the failure of the applicant to attend, Mr. Sharma contended that, following the practice under O. XXXVIII, r. 28, of the English Rules, the affidavit of the applicant cannot be read. Bottomley re Brougham 84 LJKB 1020.

Mr. Teh objected that although under English practice, a notice by one party requiring the other party to attend for cross-examination is all that is necessary; under ss. 212 and 213 of the Civil Procedure Code an order of the Court is essential before the other party need attend for cross-examination.

I consider Mr. Teh's objection is well founded; and consequently, since no order of the Court for the attendance of the applicant for cross-examination, has been obtained, the affidavit of the applicant can be read.

(The remainder of the judgment deals with the merits of the application.)

The summons is dismissed with costs.