JUDGMENT

1. This is an application dated 9.12.1997 (enclosure 36) by the 3rd defendant abovenamed to set aside the order of the High Court given on 5.11.1997. [2]

2. On the 31.10.1997, the plaintiff took out an ex-parte Summons In Chambers to extend the period of 21 days as required by section 178 of the Land Code (Sarawak Cap 81) for service of an order that the caveat lodged by the plaintiff on the 14.3.1997 as Instrument No. L715/1997 shall not lapse, on the Registrar of Land & Survey, Samarahan. The order for the extension of time was granted on 5.11.1997.

3. Section 178 of the Land Code as amended provides:-

"178. Except in the case of a caveat lodged by the Registrar in exercise of powers conferred upon him by this Code, and a caveat lodged by virtue of a licence issued pursuant to section 65B of the Forests Ordinance for the establishment of a planted forest, every caveat shall, upon the expiration of three months after notice given to the caveator that application has been made for the registration of any instrument affecting the land, estate or interest, be deemed to have lapsed as to that land, estate or interest, or so much thereof as is referred to in the notice, unless notice is within the said period of three months given to the Registrar that application for an order to the contrary has been made to the High Court and unless such an order is made and served on the Registrar within a further period of twenty-one days, or such extended period, if any, as the High Court, by order made prior to the expiration of the further period mentioned, may in any special circumstances allow." (Emphasis supplied)

4. It must be emphasized that this is an application by the 3rd defendant to set aside the order of the court dated 5.11.1997 and not the hearing of the plaintiff's original application taken out on 3.9.1997 (encl. 3). Hence, the only issue relevant for the consideration of this court concerned the construction to be placed on the stipulation of time under section 178 of the Land Code.

5. In this case, a caveat was lodged by the plaintiff at the office of the Samarahan Land Registry on 14.3.1997 as Instrument No. L715/1997 against the 2nd defendant's parcel of land situate at Sungai Bakar, 27th mile Kuching-Serian Road, containing an area of 2752 square metres, more or less and described as Lot 478 Block I Bukar-Sadong Land District. [3]

6. On the 7.7.1997, the 1st defendant issued a notice under section 178 of the Land Code and served on the plaintiff on 16.7.1997, indicating that an application for the registration of a Memorandum of Transfer affecting the said land had been made. As such, the said caveat lodged by the plaintiff shall upon the expiration of the three months as stated in section 178 after the service of the said notice was given to the plaintiff be deemed to have lapsed, unless the plaintiff informed the Registrar within the said period of three months that application for an order to the contrary has been made to the High Court. The plaintiff on the 3.9.1997 took out this Originating Summons No 24-128-97-II (encl. 3), inter alia, asking for the said caveat to remain on the Register of Titles. Evidently, the taking out of this Originating Summons came within the stipulation of three months as provided under section 178.

7. From the acknowledgment of the Samarahan Land Office, it could be clearly seen that the said Originating Summons was served on them on 19.9.1997 at about 10.30 a.m.

8. As the Originating Summons fixed for hearing on 30.10.1997 was re-scheduled to 15.1.1998, the plaintiff consequently took out an ex-parte Summons In Chambers dated 31.10.1997 for an extension of time to serve the order as prayed for in the Originating Summons scheduled to be heard in the High Court on 15.1.1998. This application for extension of time was granted by the High Court on 5.11.1997 which the 3rd defendant now intended to set aside.

9. According to the learned counsel for the 3rd defendant, the construction