Mahadev Shankar J:

This case is about a borrower and his family who did everything they could to frustrate a bank from selling their home to pay off a judgment debt.

Roshammah a/p Samuel (the deceased) was the registered owner of the land held under state lease 1446 Lot No. 297 in P.J. (the said land). On it is a house No. 33 Jalan 1/2 Petaling Jaya (the said house). The deceased's husband A. Subramaniam a.k.a. A.S. Maniam (the Borrower) is a contractor. Their two daughters and two sons (the Intervenors) live in the said house.

In 1982 the borrower approached the Bank for credit facilities. The Bank wanted security. So the deceased executed a Lien holder's caveat and deposited the title to the said land with the plaintiff (the Bank). The deceased also executed a personal guarantee.

Thereupon the borrower was given overdraft facilities on his current account with the bank which he fully utilised. The borrower bought shares and deposited three lots with the bank as additional security to allow him to continue the overdraft.

The borrower did not pay his taxes. The Department of Inland Revenue took out a bankruptcy notice and served it on the borrower. This was followed by a creditor's petition. On 5 March 1984 the borrower was made a bankrupt.

It is a criminal offence for a bankrupt to obtain credit without the permission of the official assignee. The borrower did not tell the bank he had been made a bankrupt. On the date of his bankruptcy he owed the bank RM7,794.54. Immediately thereafter he increased his indebtedness by drawing on the overdraft day by day till it became RM21,812.72 by the end of the month. He continued to operate this account until the 27 August 1984 when the balance stood at RM23,958.61. On that date the bank were notified by the official assignee of the bankruptcy. The bank immediately froze the account and ruled it off.

What should have happened next was for the bank to realise its security or give it up and prove in the bankruptcy. Unfortunately the deceased who was ill with cancer died on 13 November 1986. The family did not apply for letters of administration. Eventually in 1989 the bank filed an action in the Sessions Court where the borrower was formally appointed to represent the estate of the deceased. On 11 January 1990 the bank obtained judgment for RM50,324.31 being the amount due at the date of the institution of the action and with interest thereafter and costs. The order specifically provided that it was to be levied against the real and personal estate of the deceased.

The bank then filed this originating summons under s. 281(2) of the National Land Code 1965 for an order of sale. The borrower was named as the defendant in his capacity as the personal representative of the estate. He was served but did not enter appearance. The notice of appointment to hear this originating summons was also served upon him.

At the first hearing he appeared with the official assignee and the matter was adjourned. At the second hearing he again appeared with the official assignee. This was on 31 January 1991. The official assigneed disclaimed any interest in the said land as it had nothing to do with the personal bankruptcy of the borrower. The Court accordingly made an order in terms of the application for the recovery of the amount due to the bank with continuing interest and costs. The auction was fixed for 6 May 1991. This order was not appealed against. It was duly perfected and extracted on 20 February 1991.

The summons for directions was then taken out and served on the defendant and the order made on 19 March 1991. The bank produced a valuation report and the licensed auctioneer issued the proclamation. All was set for the sale to go on.

At all times material to these proceedings the borrower and the intervenors were living in the said house. They were well aware of what was going on.

Two days before the sale was to take place these intervenors filed a summons-in-chambers asking for t