FERNANDO v. FERNANDO et al.

Present: Sir Charles Peter Layard, Chief Justice, and Mr.
Justice Wendt.

FERNANDO v. FERNANDO et al.

D. C., Kurunegala, 1,710.

Substituted service-Requirements-Last known place of abode-Affidavit of service-Place of service-Practice-Civil Procedure Code, ss. 60, 87, and 371,

Substituted service should not be allowed unless the Fiscal has reported that he is unable, although reasonable exertion has been made by him to do so, to effect personal service, and the Court is satisfied on evidence that the defendant, against whom substituted service is applied for, is within the Island.

Where substituted service is allowed, the Court must prescribe the mode of substituted service, and it must do so on proper materials which satisfy it that the mode selected is the most perfect substitute for personal service which, under the circumstances, it is possible to obtain.

In a return of personal service the affidavit of the process server should state the place where the service was effected.

THE facts sufficiently appear in the judgments.

H. J. C. Pereira, for third defendant, appellant.

Sampayo, K.C., for the plaintiff, respondent.

Cur. adv. vult.

7th May, 1903. LAYARD, C.J.-

This is an appeal from an order of the District Judge of Kurunegala refusing to open up a judgment entered against the third defendant, appellant.

The appellant and two others were sued in this action, which was instituted in July, 1899, on a promissory note dated 25th March, 1899. On the 27th July, 1899, summons issued, and I presume that as the third defendant was described in the plaint as of Wahakula, the Fiscal must have endeavoured to serve it in that village. There appeared difficulty in serving the summons, for it was returned to the Court more than once and had to be reissued five times. The returns to the summons were in some cases " Not to be found," and sometimes to the effect that the third defendant was not known, which point to the third defendant not being in the village mentioned in the plaint from the 27th July to the 28th November, and apparently not even then known in that village. On the 25th November

1899, plaintiff's Proctor moved, as personal service was impracticable, that the Fiscal be directed to affix the summons to the last known place of abode of the third defendant. In support of that motion no material by way of affidavit or otherwise was placed before the District Judge to show that it was impracticable to serve the third defendant with a summons, or that the third defendant was in the Island. The Judge can under the circumstances mentioned in section 60 of the Civil Procedure Code prescribe another mode of service as equivalent for personal service. He can only, however, act under that section after the Fiscal has reported in writing that he is unable, although reasonable exertion has been made by him to do so, to effect personal service. Now, in this case there was no such report before the Court; on the contrary, the record was that the last return to the summons made by the Fiscal was to the effect the summons was not served for want of time. That return clearly does not disclose inability to serve the process, but that sufficient time was not allowed the Fiscal by the Court to effect service. Even, however, assuming that there was such a return before the Court, there was no evidence adduced before the Court to show that the third defendant was within the Island; this is expressly required by section 60 before the Court can prescribe a substituted mode of service. The Court's order allowing the motion was absolutely wrong for want of the required Fiscal's report, and further for want of evidence showing that the third defendant was within the Island. Further, the order for substituted service is bad because the Judge left it to the Fiscal to decide what the third defendant's last known place of abode was. Where a Court prescribes substituted s

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