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Present: Shaw J. and Schneider A.J,PALANIAPPA CHETTY v. ARNOLISHAMY.
137—D. C. Gaik, 17,550.
Substituted service of summons—Civil Procedure Code, s. 60,
Objection was taken to an order for substituted service ofsummons on three grounds, that it was made without a report thatthe Fiscal was unable to effect personal service, and without proofthat the defendant was in the Colony, and without directing atwhat spot the summons was to be served as substituted service,—Held, that all the grounds of objection were good, and that theorder for substituted service was bad.
^ j THE facts appear from the judgment.
F. de Zoysa (with him Croos-Dabrera)t for the appellant.
J.S. Jayatoardene, for the respondent.
November 6,1920. Shaw J.—
This is an appeal from an order of *the District Judge refusing tovacate a decree nm^whioh was obtained against the defendant indefault of appearance. It appears that a summons was issued forservice on the defendant on two occasions, and the Fiscal returnedhis report to the precept, stating that the defendant was not to befound in the village. Thereupon, an application was made forsubstituted service by affixing the summons on the last known
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place of abode of the defendant. Whereupon the Judge made an 1920.order to re-issue the summons for substituted service. The Fiscal
reported to that precept that he had affixed a copy of the summons *
to the front door of his last known place of abode at Gammeddegoda.
Appearance was not entered, and decree nisi was obtained. The AmolUhampdecree nisi was served on the defendant, and he oame in and filedan affidavit and moved to vacate the decree nisi on the groundthat the service had not been properly effected upon him. TheJudge decided against him, and from that decision the presentappeal is brought.
Several objections are taken to the order for substituted service.
First, that the Fiscal has not reported to the Court that he wasunable to effect personal service; seoondly, that the Court receivedno evidence that the defendant was in the Colony; and thirdly,that the Court did not direct at what spot the summons was to beserved as substituted service. These objections all appear to meto be good. In the case of Fernando v. Fernando1 the facts werealmost precisely the same as in the present case. There the Fiscalmerely reported that he was unable to effeot service. There theJudge took no evidence to satisfy himself that the defendant wasin the Colony, and there the Judge also left it to the Fiscal to decideat what spot he should serve the substituted summons as being thelast known place of abode of the defendant. All these are renderednecessary by section 60 of the Civil Procedure Code, and the non-observance of all those particulars was held to be fatal to theservice in the case I have referred to. I would allow the appealwith costs, and remit the case to the District Court for the defendantto file answer, and for the action to proceed in the usual way. Theappellant is entitled to the costs of the application in the DistrictCourt.
Schneider A. J,—I agree.
l(290*) 9N. L. R. £?&
PALANIAPPA CHETTY v. ARNOLISHAMY