Judgment Debtor barred by res judicata from challenging enforcement of a monetary judgment due to prior failed appeals.

JUDGMENT

Su Tiang Joo JC:

Introduction

[1] On 23 June 2021, I had dismissed the appeal of the Judgment Debtor ("JD") to a Judge in Chambers against the order made by the learned Senior Assistant Registrar ("SAR") on 22 April 2021. Dissatisfied, the JD by notice of appeal dated 12 July 2021 appeals to the Court of Appeal. These are the grounds for my decision which in essence is to dismiss the JD's eighth (8th) attempt at securing a stay of execution of a monetary judgment made in favour of the JC eight years ago and which is not under appeal.

Salient background facts

[2] More than eight years ago, the Judgment Creditor ("JC") obtained a judgment in default against the JD on 8 January 2013 with damages to be assessed ("JID").

[3] Upon assessment by the learned Deputy Registrar, on 6 December 2013 ("Order of 6 December 2013"), the JD was ordered to pay the JC, RM1,206,000.00 together with interest thereon at 5% per annum from 8 January 2013 until full realization ("the Judgment Debt").

[4] The JD failed in its effort to obtain an extension of time to file a notice of appeal against the judgment in default resulting in the Judgment Debt being due and payable.

[5] Garnishee proceedings initiated by the JC netted only a sum of RM321,267.73 leaving a balance owing.

[6] On 2 October 2018, the JC obtained from the High Court, an Order to sell by way of public auction one of the JD's properties held under GM 13041 Lot No. 16968 Mukim Sitiawan, Daerah Manjung, Perak ("Lot No. 16968").

[7] Dissatisfied, the JD appealed against the Order for Sale of 2 October 2018. This appeal was dismissed on 3 Jauary 2019 by the High Court. Dissatisfied, the JD appealed to the Court of Appeal and on 3 October 2019, the appeal was dismissed by the Court of Appeal.

[8] In the interim, the auction proceeded and a sum of RM670,000.00 was obtained from the sale of Lot 16968.

[9] The combined proceeds of both the garnishee proceedings and the public auction of Lot 16968 proved to be still insufficient to satisfy the Judgment Debt.

[10] The JC commenced further execution proceedings and caused a Writ of Seizure and Sale to be issued against another piece of the JD's property. This piece of property is held under Geran 107453 Lot 890, Pekan Kampung Koh, Daerah Manjung, Negeri Perak ("Lot 890").

[11] By way of application (Encl 3) the JC applied for Lot 890 to be sold by way of public auction to settle the [balance] of the Judgment Debt amounting to RM591, 723.96 and owing as at 31 October 2019 under the Order of 6 December 2013. The JD opposed this application.

Order of the learned SAR of 22 April 2021

[12] On 22 April 2021 the learned SAR heard the application (Encl 3) and ordered that:

i) Lot 890 is to be sold by public auction to settle the sum of RM RM591,723.96 owing as at 31 October 2019 under the Order of 6 December 2013;

ii) Jaaz Zairushida Binti Ja'afar, a licensed auctioneer is to conduct the auction and to put up the necessary advertisement in a local newspaper 14 days before the date of auction; and

iii) The Reserve Price was fixed at RM710,000.00.

Appeal to Judge in Chambers

[13] By Notice of appeal to a Judge in Chambers (Encl 74) dated 5 May 2021 the JD appealed against the learned SAR's Order of 22 April 2021.

[14] Such an appeal is to be heard by way of a complete re-hearing, see Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad, [1996] 1 MLJ 30.

JD's challenge

[15] The JD asserts that it has filed a suit in Ipoh High Court Civil Suit No. AA-22-NCvC-153-12/2018 ("Suit 153") wherein it had assailed the JID and Order of 6 December 2013 on the ground that these have been procured by fraud.

[16] The Plaintiff in Suit 153 who is the JD in this action had inter alia sued for the JID and the Order of 6 December 2013 to be set aside. Needless to say, if it succeeds, the JD would not owe any money to the JC.

[17] Emphasis was laid on the fact that the Defendant in Suit 153 and who is the JC in this action, had failed in its attempt to strike out Suit 153 a