The plaintiff attached these goods and had them sold on the basis that

the goods belonged to the defendant. But what evidence was there to

support that contention? None whatsoever except the say-so of the

plaintiffs solicitors in the writ of seizure and sale. The plaintiff

did not file any affidavit to contradict the affidavits filed by the

claimant. Where a case is to be decided on a contest of affidavits, the

rule is clear. Material allegations which are not contradicted are

deemed to be admitted: See Tynte v Buller (1854) 23 LJ Ch 504; 2

WR 309. At the hearing, the claimants oral evidence that she was the

sole owner of the goods was also unchallenged. Per Shankar J in

Overseas Investment Pte Ltd v Anthony William O Brien & Anor

[1988] 3 MLJ 332 at pp 333-334.

Does that passage convey the meaning that at the hearing of an interpleader summons, the judgment creditor is obliged to give evidence to show that the goods seized are that of the judgment debtor in order to rebut the claimants case? That is the question to be answered in this appeal pursuant to s 28(1) of the Courts of Judicature Act 1964 from an order made by the learned sessions court judge at the conclusion of the hearing of such a summons.

In the sessions court, the plaintiff (the respondent before me) caused a writ of seizure and sale to be issued against the defendant following a judgment that he had obtained against the latter. Amongst the items seized was an air-conditioner unit which was claimed by the claimant (the appellant before me). At the hearing of the interpleader summons, the appellant as plaintiff said that the air-conditioner was purchased by her at a cost of RM500. She said that the receipt has been misplaced. The air-conditioner had been fixed in the office of the defendant, her father, where she used to go occasionally. She did not reside at the defendants premises. In cross-examination, she denied that the air-conditioner belonged to the defendant. The respondent did not call any evidence on this issue. In dismissing the claim, the learned sessions court judge said that the appellant had failed to establish her title to the air-conditioner. This prompted the appellant to appeal against the decision on a point of law, that is to say:

Rayuan ini adalah atas alasan bahawa hakim mahkamah sesyen telah salah

dari segi undang-undang kerana hakim seharusnya menerima dan

membenarkan tuntutan penuntut di atas kerana tidak ada sebarang

keterangan bertentangan langsung yang diberikan oleh pihak plaintif

sama ada secara afidavit mahupun keterangan lisan di mahkamah untuk

menimbulkan sebarang asas untuk menunjukkan bahawa barang-barang yang

dituntut oleh penuntut adalah barang-barang kepunyaan defendan.

The law relating to interpleader summons is governed by O 13 of the Subordinate Courts Rules 1980 (the SCR). All references to rules of court hereafter shall be to the said order unless otherwise stated. Where a bailiff who has levied under a writ of execution is in possession of property or its proceeds of sale and he is, or expects to be, sued in respect thereof by two or more persons making adverse claims thereto, he may apply to the court for an order requiring the claimants to litigate their differences and to abide by the courts final order in respect thereof. In these circumstances, he is said to apply to the court for relief by way of interpleader. In a bailiffs interpleader, relief is available to the bailiff where a claim is made by any person, other than the person against whom the process is issued, to any money, goods or other movable property taken or intended to be taken in execution by him under process of the court, or to the proceeds or value of any such property.

Rule 5 which deals with the power of the court in hearing such a summons reads as follows:

5 (1) Where on the hearing of an ap