Chang Min Tat J:

By notice of motion, an appeal, listed as Civil Appeal No. 1 of 1968, was lodged in the High Court at Ipoh against the decision of the Collector of Land Revenue, Kuala Kangsar, made on 16 November 1967 and notified to the appellant on 20 November 1967, in the matter of Kuala Kangsar Foreclosure Application No. 5 of 1966, whereby the Collector of Land Revenue disallowed the application of the chargor for the adjournment of the foreclosure action instituted by the chargee until the final disposal in the High Court of the chargee's action in Ipoh High Court Civil Suit No. 232 of 1967 against the chargee to void the chargee for alleged breaches of the Moneylenders Ordinance on the part of the chargee. The notice of motion was filed on the 22 January 1968 and served on the solicitor for the respondent. The respondent thereupon applied by notice of motion filed on the 28 February 1968, to set aside the chargor's notice of motion upon the sole ground that an appeal from a statutory body to the High Court should be by originating motion.

The statutory provision for an appeal from the decision of the Collector of Land Revenue in any enquiry in a chargee's application is s. 37 of the National Land Code. The procedure laid down for such an appeal is in O. 59 r. 13(1) of the Rules of the Supreme Court, which reads as follows:-

13. (1) Where under any written law an appeal lies from any decision of any person or body of persons to the High Court or to the Supreme Court such appeal shall be made to the High Court in the State where the decision was given by motion setting out the grounds of appeal, supported by affidavit and, if the Court go directs at the hearing, by oral evidence."

The question that arises in this application is the simple one of deciding whether the "Motion" referred to in the rule should be strictly an originating motion or whether it could include and should mean a notice of motion.

It is contended on behalf of the appellant that an appeal, being a rehearing, is essentially and factually a continuation of the same judicial process in the Courts of the land, so that the one conclusion must be that an appeal does not originate any process in the High Court and, therefore, need not be by originating motion. And it is further submitted that the appellant, by giving notice of motion, was merely following the procedure under O. 58 r. 3 of the 1957 Annual Practice (pp. 1243 and 1246-1247 of the White Book), the justification for so following the English practice being O. 1 r. 2 of the Rules of the Supreme Court, which provides that:-

All proceedings other than actions and all applications in the High Court or the Court of Appeal may, subject to those rules, be taken and made in the same manner as the like proceeding or application would be taken or made in the High Court of Justice or in the Court of Appeal in England, as the case may be."

However, O. 58, both in the White Book and in the Rules of the Supreme Court, refers to appeals from the High Court to the Court of Appeal or, as it is now known in Malaya, to the Federal Court. I am in considerable doubt as to the correctness of adopting a procedure laid down for an appeal from the High Court to the Federal Court to an appeal from a statutory body to the High Court. In any event, O. 58 r. 3 in the White Book has been specifically omitted from our local Rules of the Supreme Court, and any doubt in my mind must now be resolved into certainty that it is not correct to rely on the practice as outlined in the White Book under this particular rule. Furthermore, O. 1 r. 2 of the Rules of the Supreme Court comes into use, as I read it, only where the local rules do not provide. Re Abdul Aziz's Application [1961] 1 MLRH 833; [1962] 1 MLJ 64 it was held that in the absence of any existing local provision relating to criminal contempt, the practice procedure and form in force in England became applicable. This was a decision of the Singapore Courts