The court reaffirmed the mandatory requirement for timely execution of judgments as per Order 46 r 2(1)(a) Rules of 2012, finding the plaintiff’s inaction barred relief under the doctrine of laches.

JUDGMENT

Awang Armadajaya Awang Mahmud JC:

Introduction

[1] This is an appeal against the decision of the Learned Magistrate given on 27 May 2020, in Muar in the State of Johore, whereby the Learned Magistrate dismissed the ex parte application for leave for execution, vide an ex parte application, (encl 6) of a Judgment entered on the 28 October 2008.

[2] The Notice of Application was made pursuant to O 46 r 2(1)(a) Rules of 2012 .

[3] The cause papers are as follows:

i. Notice of Appeal (enclosure 1).

ii. Appeal Record (enclosure 2).

iii. Supplementary Appeal Record (enclosure 3).

iv. Supplementary Appeal Record (enclosure 4).

v. Additional Appeal Record (enclosure 7).

Background Facts

[4] On 28 October 2008, the Plaintiff / Appellant obtained a Judgment-in-Default against the Defendant / Respondent. Following this event, on 13 July 2010, a letter was served on the Defendant that became the 1st reminder on the execution in respect of the said Judgment-in-Default.

[5] As there was no response from the Defendant at the time, a 2nd letter was served on the Defendant on 4 October 2012 as a 2nd Reminder on the execution in respect of the said Judgment-in-Default. Since there was also no response from the Defendant, on 15 October 2012 a Writ of Seizure and Sale (movable property) was entered against the Defendant's address.

[6] Subsequently on 18 February 2013, the 1st attempt at execution was unsuccessful because the premise was closed and locked. On 2 April 2014, a letter from the Court to the Plaintiff informing the 2nd attempt at execution.

[7] On 30 April 2013, 2nd attempt at execution was also unsuccessful because the premise was closed and locked.

[8] Subsequently on 3 July 2013, the Defendant made a payment of RM300-00 based on a statutory declaration affirmed on 31 May 2013.

[9] On 30 September 2013 the Court allowed extension for the Writ of Seizure and Sale for a further 12 months from the expiry date on 16 October 2013 until 15 October 2014.

[10] On 12 May 2014, 3rd attempt at execution was unsuccessful because when the executor arrived at the premise in the morning, the occupants were not co-operative while in the afternoon the premise was closed and locked up.

[11] On 14 May 2020 a reminder letter from the Plaintiff to the Defendant that the execution proceeding shall be taken if the Defendant refused to pay up the Judgment Sum.

[12] On 27 May 2020, ex parte Notice for application for execution filed by the Plaintiff and after hearing the application, the Learned Magistrate dismissed the said application because the Plaintiff was unable to furnish sufficient grounds to allow for extension beyond the 6 years. The reason given by the Plaintiff was that after the initial payment of RM300-00, no further attempts to pay up was made and there was no further discussion between parties.

The Issues In This Appeal

i. Whether Order 46 R 2(1)(A) Rules of 2012 , Has Been Complied With.

ii. Whether The Ex Parte Application (Encl 6) By The Plaintiff Is Caught By The Doctrine Of Laches.

I shall deal with the grounds accordingly.

i. Whether Order 46 R 2(1)(A) Rules of 2012 , Has Been Complied With.

[13] Order 46 r 2 is reproduced for ease of reference as follows:

46. Writs of execution: General

...

2. (When leave to issue any writ of execution is necessary (O 46 r 2)

(1) A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases:

(a) where six years or more have lapsed since the date of the judgment or order;

(b) where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;

(c) where the judgment or order is against the assets of a deceased person coming to the hand of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;

(d) where under the judgment or order any person is entitled to relief subject to the fulfilment of any condition which it is all