Chong Siew Fai J:

[1] In this summons the plaintiff applies under O 3 r 5 of the Rules of the High 1980 for extension of time to appeal against the order of the learned Senior Assistant Registrar given on 25 January 1992 ordering that "execution of this Judgment be stayed pending the outcome of the trial of the counterclaim or further order".

[2] The application is supported by the affidavit, of its area manager Victor Chin Jun Hock affirmed on 26 February 1994. The defendants opposed the application. Though an affidavit in opposition was filed, Counsel for the defendants, owing to the plaintiff's objection to its being used, chose not to reply on it. I do not think the defendants are in any way adversely affected by the move since the objection contained in the written submission 'RESPT' could properly and effectively be advanced without the aid of the affidavit.

[3] For the defendants, it was contended that the application was defective in that it sought an order to appeal as opposed to extend the time to appeal. I see no merit in the argument. The relevant wording in the summons reads thus:

for an order that notwithstanding the time limited.................for doing so has expired, the plaintiff be at liberty to appeal........

[4] It clearly indicates that leave is sought to appeal out of time.

[5] The background relevant to the application may be thus briefly stated. By the order dated 25 January 1992, the plaintiff obtained summary judgment against the 3 defendants in the sum of RM129,000 with interests amounting to RM15,503.07 and further interest and costs. The order also decreed:

that execution of this Judgment be stayed pending the outcome of the trial of the counterclaim or further order.

[6] The counterclaim is made only by the 1st defendant and then for the specified sum of RM16,613.50 with interest plus damages for breach of contract and costs. There is no suggestion or material indicating the quantum or extent of the damages claimed.

[7] Against that part of the order made on 25 January 1992 staying execution of the judgment, the plaintiff did not lodge any notice of appeal which under O 56 r 1(3) would have to be issued within 5 days after the order appealed against was made ie by 30 January 1992, if there was an appeal. On 23 July 1993 the plaintiff took out the present summons applying for extension of time to appeal against the stay of execution. There is, therefore, a lapse of nearly 1½ years since 30 January 1992.

[8] What are the reasons? Are they reasonable? After the grant of the order dated 25 January 1992, the plaintiff by a summons dated 9 March 1992 applied to the Deputy Registrar seeking that that part of the decree quoted above staying execution of the judgment and contained in the said order dated 25 January 1992 be set aside or be substituted by the words:

It Is Also Hereby Ordered that execution of part of this Judgment to the extent of RM16,613.50 being the amount claimed by the 1st defendant by its counterclaim, be stayed pending the outcome of the trial of the counterclaim or further order.

[9] On 24 October 1992 the Senior Assistant Registrar granted the plaintiff's application and allowed the substitition of the words quoted above in the said order dated 25 January 1992. (For Ruling see encl 77).

[10] By a notice of appeal dated 28 October 1992 the defendants appealed against the order made on 24 October 1992 allowing the substitution of the words. On 22 July 1993 I allowed the defendants' appeal on the ground that the order dated 25 January 1992 having been drawn up, passed and entered, the learned Senior Assistant Registrar had no jurisdiction to vary or amend the same. The order of 24 October 1992 was set aside. That means the order of 25 January 1992 stands intact.

[11] On 23 July 1993 ie the day next following my decision on 22 July 1993, the plaintiff filed the application now before me for extension of time to appeal.

[12] It will be noted from the above that the plaintiff, apart from the