Ong CJ (Malaya):

Mohamed Sharjudin was and still is the registered proprietor of an undivided 2/6 share in the land held under GrantNo. 11746 in Ulu Kinta. On 8 November 1968 he sold all that interest to Subramaniam and executed a transfer thereof in statutory form. Subramaniam was, however, unable to present the instrument of transfer for registration by reason of the vendor's failure to deliver up the issue document of title. He therefore took the precaution of entering a private caveat on the register to protect his interest. This caveat was registered on 13 November 1968.

It appears from a perusal of the appeal record that Mohamed Sharjudin subsequently executed a second transfer of the same 2/6 share to ARSP.

Karuppiah Chettiar on 3 March 1969. The Chettiar then discovered the existence of Subramaniam's private caveat, presumably upon presenting his transfer for registration. On 5 March 1969 the Chettiar's solicitors wrote to Subramaniam demanding that his caveat be withdrawn. The demand was rejected. On 14 April 1969 the Chettiar obtained judgment against Mohamed Sharjudin for nonpayment of a debt. Whether the judgment was for the amount of the consideration involved in the nugatory transfer is not clear, but this would seem a logical assumption. Upon this judgment the Chettiar obtained a prohibitory order on 22 April 1969. It was duly entered on the register document of title against the judgment debtor's 2/6 share in GrantNo. 11746.

On 9 May 1969 Subramaniam intervened by summons in chambers, in the Chettiar's action against Mohamed Sharjudin, applying to set aside the prohibitory order. At the hearing of the summons it was expressly agreed between Counsel for the panics that the only issue to be determined was whether the unregistered transfer dated 8 November 1968 supported by the entry of caveat on 13 November 1968 affected the prohibitory order obtained on 22 April 1969 and the rights of the attaching creditor. In other words, the intervenor's case is that the prohibitory order was in effect nugatory, since the order cannot override his beneficial interest in the property attached. On the other hand, the attaching creditor's contention was that, as a caveat only forbids dealings by the registered proprietor, it cannot affect the rights which the attaching creditor obtains by a prohibitory order.

The learned Judge decided in favour of the intervenor and allowed his application. The judgment creditor now appeals against such decision on three grounds. First, it is contended that the Judge was wrong in holding the prohibitory order to be of no effect against the caveat; secondly, that he erred in holding that a caveat protected a land from attachment in execution of a Court order; and thirdly, that the intervenor only had a right in personam which could not prevent attachment and sale of the land in question.

In my opinion the answer to the first and third grounds is summed up in a short passage from the judgment delivered by Lord Wilberforce in Chung Khiaw Bank v. United Overseas Bank Ltd [1970] 1 MLJ 185 , 186, PC thus:-

.... under the general law, apart from the provisions as to registration, and in certain circumstances even where such special provisions exist, the judgment creditor can only take whatever interest the debtor has and, .... in such a case, questions of priority and correspondingly of postponement through failure to register, do not arise.

His Lordship had cited with approval Whitworth v. Gaugain (1844) 67 ER 444, 447 in which Wigram VC said:-

I feel that I stated the general principles correctly in Langton v. Horton when I said that a creditor might, under his judgment, take in execution all that

belonged to his debtor, and nothing more. He stands in the place of his debtor. He only takes the property of his debtor, subject to every liability under which the debtor himself held it.

In Ng Boo Bee v. Khaw Joo Choe & Ors.(1921) 14 SSLR 90, 95 Sproule J whose decision was upheld on ap