JUDGMENTBY: THOMSON CJ, GOOD J, NEAL J

THOMSON CJ The respondent to this appeal is the registered proprietor of country land some six acres in extent in the State of Johore and on 6th May, 1958, he applied by way of Originating Summons for certain reliefs in connection with a charge on the land which he had granted in favour of the appellant on 9th January, 1955.

I would observe in limine that the respondent was asking for the discharge of a charge of land which is the equivalent under our land laws of a reconveyance of mortgaged property and it was therefore open to him to proceed by way of Originating Summons under Order LV rule 5A. His solicitor, however, must have been well aware that there was a dispute as to the facts of the case and in the circumstances the proceedings should have been commenced by Writ (see White Book, 1959, p. 1503). In my view this was not in itself fatal to the respondents case but if it has involved any extra costs, as it may have done in the circumstances of the present case, these should be borne by the respondent in any event.

The respondents case was that a few days prior to 9th January, 1955, the appellant agreed to lend him $ 6,750 without inte

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