Howes J:

This was an application by the the second defendant under s. 98 (i) or s. 612 of the Civil Procedure Code that the suit be dismissed.

The original plaint was issued under Ch XXXIX of the Civil Procedure Code on 16 December 1932 and was founded on a promissory note for $1,240 dated 13 February 1930.

On 16 December 1932, the plaintiff filed an application asking for substituted service by registered post, but the order for Substituted service was never made, as the plaintiff never pursued the application.

On 14 March 1934 the plaintiff applied for an order that a fresh summons should be served on the second defendant, the first defendant then being dead. Notice of the application was not given to the second defendant, though his address was known to the plaintiff at the time.

In his affidavit in support, the plaintiff did not disclose the fact that he had previously applied for substituted service and his statement in para. 3 thereof was inconsistent with that in his affidavit of 16 December 1932 (in which he applied for substituted service), and wherein the full postal addresses of the defendants were given. The statement that the defendants had gone to India "for the purpose of avoiding their creditors" was therefore unsupported.

On 14 March 1934, the Registrar ordered that a fresh summons should be served on the second defendant.

Instead of appealing against this order, the second defendant now applies for the suit to be dismissed.

The plaintiff took no steps to serve the original summons, which lay dormant for over a year before the issue of a new summons was applied for.

For the plaintiff, it was argued that the motion cannot be brought under s. 98 (i), and that when the Registrar has ordered a new summons to issue the Court cannot entertain a motion for dismissal of the suit under s. 98 (i). The proper course, it was argued, was for the defendant to appeal from the Registrar's order under s. 7 (iii) of the Courts Enactment as amended by Enactment 18 of 1932. Or, the Registrar could have been asked to amend his order under s. 7 (ii) (c). As against this, the second defendant was not aware of the application for the summons, and by the time it was served on him it was too late for him to appeal from the Registrar's order.

The power to issue a fresh summons, in cases where a summons has been returned unserved, arises under s. 98 (i) which is contained in Ch IX of the Civil Procedure Code. Rule I, sub-rr. 44, (1932 Enactment p. 512) defines the acts which shall ordinarily be performed by the Registrar and the rule does not include procedure under Ch IX of the Civil Procedure Code.

I hold that the order for the issue of a new summons made by the Registrar under s. 98 (i) was ultra vires and consequently bad. Moreover, from the affidavits it is clear that the Registrar was wrongly informed of the facts of the case by the plaintiff, and the previous application for substituted service was suppressed.

In the circumstances, I hold that it is within the power of the Court to act under s. 98 (i) of the Civil Procedure Code and to ignore the ultra vires order of the Registrar of 14 March 1934 and I accordingly order that the suit be dismissed with costs. Liberty to the plaintiff to bring a fresh suit, subject to sub-section (ii) of s. 98.