On 24.8.2007, the High Court passed a judgment in favour of the plaintiff, declaring that the Supplementary Agreement entered between the Plaintiff, the 1st Defendant and the 2nd Defendant on the 11.8.2000 has been validly rescinded. The court also ordered for the refund of the Purchase Price of RM2,913,160.00 for 14 Condominium units together with interest at 8% per annum from 11.8.2000 until the date of full settlement (herein after referred to as "the said judgment").

Pursuant to this order, the 2nd Defendant applied for a stay of execution and enforcement proceeding of the same as indicated in their application marked as Enclosure 14.

2. It was the 2nd Defendant's grounds that there are merits in their appeal as the aforesaid judgment was a judgment in default of defence and there are special circumstances to stay the execution and if the stay is not granted, the 2nd Defendant's Originating Motion to extend time to file the appeal and the appeal itself would be rendered nugatory. The 2nd Defendant has filed an Originating Motion for an extension of time to file the Notice of Appeal on 28.11.2007, more than 3 months after the said judgment was obtained by the Plaintiff on the 24.8.2007.

It was also the 2nd Defendant's averment that their company is a solvent company and able to pay the said judgment sum. Accordingly, the Plaintiff's action to wind-up the 2n Defendant would detrimentally affect the 2nd Defendant's operations and its ability to pay the Plaintiff.

3. However, it was the Plaintiff's contention that the judgment obtained on 24.8.2007 is a regular judgment based on oral and written submissions by both parties. Additionally, the 2nd Defendant was late in entering appearance, late in filing the Statement of Defence and the affidavits in reply. Although the 2nd Defendant filed an application for an extension of time to file the Statement of Defence, no application for extension was made for the affidavits in reply including the purported supporting affidavit. The Notice of Appeal had also not been filed within the prescribed time limit and the 2nd Defendant has had to file the Origination Motion to extend time to file the Notice of Appeal. The Plaintiff also contends that if the 2nd Defendant is solvent and able to pay the judgment sum, then it ought to pay the judgment sum without further ado. The Plaintiff would be able to repay the judgment sum if the 2nd Defendant's appeal is allowed by the Court of Appeal.

4. Having scrutinized the 2nd Defendant's application, I am in agreement with the submission of learned counsel for the Plaintiff that the entirety of the 2nd Defendant's application is restricted to a stay of execution only and not to a stay of winding-up proceedings.

In my view, execution does not include a petition to wind up a company -see Halsbury's laws of England (4th Edition) 1976 para 401:-

"Execution does not include a petition to wind up a company or a bankruptcy petition, but execution may, however, operate as an act of bankruptcy ".

Additionally in TAC Construction & Trading v. Bennes Engineering Bhd (No. 2) [1999] 2 CLJ 518:-

"... it can safely be concluded that proceedings in bankruptcy or for the winding-up of a company do not fall within the ambit of proceedings by way of execution or writ of execution".

5. Having decided that the 2nd Defendant's application is confined only to a stay of execution, therefore in any such application for stay of execution, the 2nd Defendant must now show the existence of special circumstances to justify the granting of the stay of execution. In Ming Ann Holdings Sdn Bhd v. Danaharta Urns Sdn Bhd [2002] 3 CLJ 380; [2002] 3 MLJ 49, Abdul Hamid JCA (as he then was) held at p. 67:-

"The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The weight of authorit