JUDGMENTBY: EDGAR JOSEPH JR FCJ (DELIVERING THE JUDGMENT OF THE COURT)

EDGAR JOSEPH JR FCJ (DELIVERING THE JUDGMENT OF THE COURT) This appeal arose out of an unsuccessful chargors application by way of summons in chambers to set aside an order for sale made pursuant to s 256(3) of the National Land Code 1965 (the Code) of certain charged land comprised in temporary certificate of title No HS(D) 6287/86 PT No 2695 (plot no 1723) mukim Sungei Pasir, daerah Kuala Muda, Kedah (the land) and consequential orders which included an order for vacant possession, on the ground that they had not received prior notice of the date of adjourned hearing of the chargees application to enforce the charge concerned (the charge), contrary to O 83 r 2(4) of the Rules of the High Court 1980 (the RHC 1980).

The history of the matter which called for the consideration of the court may be shortly stated.

As already noted, the chargees who are the first respondents to this appeal had, on 8 March 1991, pursuant to s 256(2) of the Code, commenced proceedings by way of originating summons in the High Court, holden at Penang, to enforce the charge created in their favour by the chargors, who are the appellants herein. The second respondent to this appeal was the purchaser at the judicial sale (the purchaser) of the land and had been added as a party to the appeal at our behest since it was obvious that if the chargors were to succeed, his right would be affected thereby. In the event, by way of a letter addressed to this court, the purchaser through his solicitors had taken a neutral position and was content to leave the matter to the court but urged that in the event of the appeal succeeding he be not condemned in costs.

The chargors, although duly served with the originating summons, did not enter appearance but on the date fixed for hearing -- that is to say, 30 October 1991 -- they did attend court but the case was not heard on that day. The originating summons was then refixed for hearing on 29 January 1992, and on that day, the case was heard ex parte and orders in terms of the originating summons, including the order for sale, had been made in favour of the chargees, pursuant to ss 256(3) and 257(1) of the Code (the ex parte orders).

In their affidavit filed in support of their summons in chambers, the chargors, who are husband and wife, had claimed that they had not attended court on the day when the case was heard and the ex parte orders made, because they had not been served with notice of the adjourned date of hearing.

What, then, was the effect of the failure to serve the chargors or either of them with notice of the adjourned hearing of the originating summons on the ex parte orders?

Before the judge, counsel for the chargors contended that the ex parte orders had been thereby rendered null and void as there had been a breach of the rule of natural justice expressed in the maxim audi alteram partem reinforced by O 83 r 2(4) the RHC 1980 which provides:

Where the hearing is adjourned, then, subject to any directions given

by the court, the plaintiff must serve notice of the appointment for

the adjourned hearing, together with a copy of any further affidavit

intended to be used at that hearing, on the defendant not less than 2

clear days before the day fixed for the hearing.

A copy of any affidavit served under this paragraph must be indorsed in

accordance with para (3).

On the other hand, in the court below, counsel for the chargees has taken the point, that as the ex parte orders had been perfected before the chargors summons in chambers to set aside had been filed, the High Court was functus officio, having regard to the principles enunciated in MUI Bank Bhd v Cheam Kim Yu (Beh Sai Ming, Intervener) [1992] 2 MLJ 642 . Before us, though counsel for the chargees did not take the point, he did not abandon it either.

In the alternative, counsel for the chargees had contended that the effect of the failu

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