JUDGMENT

V.C. George J:

This appeal was dismissed with costs. We now give our reasons for having done so.

The appeal was said to turn on the one issue, whether the service of the bankruptcy notice on the appellant was good service. It turned out that the real bone of contention was the appellant's complaint that the order for substituted service had been improperly obtained.

The petitioner bank, the respondent in the appeal, had obtained judgment against the appellant in the High Court at Kuala Lumpur on 15 December 1989 for RM4,024,013.85 interests and costs - the appellant had been sued as a guarantor of a customer of the bank. In the letter of guarantee the appellant's address is given as No. 146 Jalan Maarof Bangsar, Kuala Lumpur.

The petitioner had obtained an order for substituted service (SS) of the bankruptcy notice pursuant to which service was to be effected on the appellant by posting a copy of the notice and of the order for SS on the notice board of the Court and also on a conspicuous part of the premises known as No. 146 Jalan Maarof Bangsar 59000 K.L. on the basis that that was the last address of the said judgment debtor (i.e. the appellant) known to the bank and by advertisement in one issue of any daily newspaper. The SS was purported to be effected in terms of the order, the required advertisement being in an issue of the Malay Mail, the effective date of the substituted service being 7 April 1993. Two days later, on 9 April 1993, the appellant affirmed his "affidavit on an application to set aside bankruptcy notice." It was affirmed in Kuala Lumpur before a Commissioner for Oaths.

Now, as the real bone of contention of the appellant is that the order for substituted service should not have been given, the application should have been for an order setting aside the order for SS and not as is the case here, for the bankruptcy notice to be set aside. However we decided to deal with the appeal on the basis that in fact the real bone of contention (i.e. the propriety of the order for SS), was before the learned Registrar, the learned Judge in the High Court and before us.

The application for SS was made on the basis that it was not possible to effect personal service of the notice on the judgment debtor as at all relevant times his whereabouts was not known to the petitioner on whose behalf it was said that the last known address of the appellant as far as the petitioner and its solicitors were concerned was No. 146, Jalan Maarof, Bangsar, 59000 Kuala Lumpur.

The process server in attempting to serve the bankruptcy notice on the appellant at that address had been told by an occupant of the premises that the appellant had shifted from there. The process server had thereafter, in purported compliance with Practice No. 1 of 1968, sent a letter of appointment addressed to the appellant at the No. 146 Jalan Maarof address (presumably on the basis that he might after all be there) and pursuant to it duly called at the address on the appointed day which was Tuesday the 16 June 1993 to find the premises locked. He called out the name of the appellant but nobody answered. The letter of appointment eventually was returned to the petitioner's solicitors endorsed "Pindah/left."

The appellant contends by his affidavit of 9 April 1993 that for the previous 6 years he had resided in England. He says that the petitioner and/or its solicitor "are fully aware of the above by virtue of previous bankruptcy proceedings taken against me vide No. D5-29-2400-91."

It turned out that there had indeed been an earlier petition taken out by the instant petitioner in respect of the same judgment debt relied on in the instant petition. There, in applying for substituted service the appellant's last known address was erroneously given by the appellant as No. 145 Jalan Maarof instead of No. 146. When the appellant applied to set aside the bankruptcy notice in that petition on the basis of the error made in respect of the address at Jala