JUDGMENT

1. This is an application by lim Tian Huat, the Receiver and Manager of the property of the abovenamed defendant dated 11.9.97 for the following orders:-

(a) ;that the prohibitory order dated the 16th day of July, 1997 affecting all the defendant's undivided right, title, share and interest in all that parcel of land together with the factory building thereon and appurtenances thereof, situated at Lot 20 & 21 Sejingkat Industrial Park, Kuching, Sarawak, containing an area of 4 hectares 6850.0 square metres, more or less and described as Lot 1023 Block 7, Muara Tebas Land District be set aside;

(b) ;that any act relating to, sale, transfer or disposal of the said land made pursuant to the prohibitory order is null and void and be set aside;

(c) ;that the costs of and incidental of this application be paid by the plaintiff to the defendant; and

(d) ;such further and/or other order as this court deems fit. [2]

2. In this case, judgment in default of appearance was entered against the defendant by the plaintiff in Suit No. 22-47-97-II for the sum of RM1,321,003.55 with interest thereon at 8% per annum from the date of judgment until full settlement and costs. Pursuant to the said judgment in default and in execution thereto, a prohibitory order was taken out by the plaintiff on 16.7.97 against the abovementioned land of the defendant. On 22.8.97, the learned counsel for the plaintiff also took out the Summons for Directions for the sale of the said land which then prompted the Receiver and Manger herein to take out this application.

3. It is not disputed that the said land had been charged to Malayan Bank Berhad (MBB) for a sum of RM50 million and the same was duly registered at the Kuching Land Registry Office on 22.4.96 at 1140 hours. It could be seen from the extract document of title to the said land that a caveat had also been lodged as well in respect of the abovesaid transaction.

4. In this application, the learned counsel for the Receiver and Manager of the property of the abovenamed defendant submitted four grounds for the considerations of this court.

5. Firstly, it was argued that the said prohibitory order taken out by the plaintiff is null and void in the absence of a writ of seizure and sale. In this context, the learned counsel for the Receiver and Manager urged the court to refer specifically to O. 45 r. 1(1) of the Rules of the High Court 1980 (RHC) which provides that:-

"1.(1) Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means, that is to say -

(a) ;writ of seizure and sale;

(b) ;garnishee proceedings;

(c) ;a changing order; [3]

(d) ;the appointment of a receiver;

(e) ;in a case in which rule 5 applies, an order of committal."

According to the submission of the said counsel, in view of the abovesaid provisions and O. 46 r. 1, a writ of seizure and sale is a pre-requisite before a prohibitory order could be taken out by any parties in the enforcement of a judgment or order for the payment of money. As the plaintiff failed to take out a writ of seizure and sale before the issuance of the prohibitory order, the said order issued on 16.7.97 against the defendant's land must be considered null and void.

6. On the other hand, the learned counsel for the plaintiff pointed out that the specific provisions pertaining to the seizure of immovable property are dealt with under O. 47 r. 6 of the RHC which states:-

"6. Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:

(1) ;Seizure shall be made by an order prohibiting the judgment-debtor from transferring, charging or leasing such property or interest. For the purpose of this rule "charging" shall include the creation of a lien by deposit of a document of title;

(2) ;A copy of the order shall be served on the judgment-debtor a