S.G. Sale, J.

1. I must, I think, adhere to the opinion I have alreadyexpressed. In my opinion no ground has been shown for a review of the orderrescinding the leave granted to the defendant to appear and defend. As regardsthe question of limitation, I still think that the only possible date to whichI can refer is the date of the service of summons as shown in the Sheriffsreturn. From the statement made in the petition, the proper inference is thatservice of the summons was effected on the 5th of January, and that the periodof limitation in respect of the application to appear and defend began to runfrom that date. I do not think that the situation is altered by the fact thaton the plaintiffs application to rescind the order giving the defendant leaveto appear and defend the defendant came prepared to show that there had been,in fact, on service of summons at all. The proper time to determine questionsof limitation relative to ex parte applications is when the application ismade, and-I do not think it is open to the defendant afterwards to attempt toescape the law of limitation by showing a state of things different from thatappearing on the face of the original petition. The question as to what tookplace upon the occasion of the service of summons by the Sheriff is one whichmay properly be taken into consideration op an application under Section 534 toset aside the decree, if made but for the reason I have already stated, it isnot, I think, a matter which I am at liberty to enquire into at the presentstate of the case. The rule must be discharged with costs.

.

Madhub Lall Durgurvs. Woopendranarain Sen(11.02.1896 - CALHC)