Richard Malanjum JCA:

Introduction And Background Facts

[1]There are three appeals before us arising from the same matter, Originating Summons No. 24-864-1992. The appeals are as follows:

(a) Civil Appeal No. B-02-666-2000 by the 8th defendant in the originating summons (first appeal);

(b) Civil Appeal No. B-02-402-2002 by the plaintiff in the originating summons (second appeal); and

(c) Civil Appeal B-02-403-2002 by the 2nd intervener in the originating summons (third appeal).

[2] In this judgment the original references in the originating summons to the plaintiff, defendants and interveners are maintained.

[3] Briefly the background fact of the case is that the 8th defendant was one of the eight co-proprietors of a parcel of land held under E7 809 Lot 431 Seksyen MK at TBG Nos. 241 & 243 Jalan Telok Pulai, Klang (the said land).

[4] As the co-proprietors of the said land failed to pay the assessment rate amounting to RM21,887 as at 1 September 1992 the plaintiff filed an application by way of originating summons to the Shah Alam High Court on 9 November 1992 seeking an order for sale of the said land pursuant to ss. 146, 148 and 151 of the Local Government Act 1976.

[5] On 6 July 1994 the High Court at Shah Alam made the Order as prayed for.

[6] Thus, by way of public auction the said land was therefore sold on 6 June 1995. The successful bidder was the 2nd intervener.

[7] In compliance with the order for sale the learned deputy registrar of the High Court Shah Alam duly executed the Certificate of Sale on 21 September 1995.

[8]On 11 December 1995 the 2nd intervener was registered as the registered proprietor of the said land.

[9] As the 2nd intervener had subsequently charged the said land to OCBC Bank (Malaysia) Berhad, the 1st intervener was registered as the chargee of the said land.

[10] On 21 November 1996 the 8th defendant by way of summons in chambers applied to the Shah Alam High Court to set aside the order for sale alleging that it was a nullity since the originating summons was not served on her.

[11] The 1st and 2nd interveners on application were allowed to intervene in the application by the 8th defendant.

[12] On 17 August 2000 the learned High Court Judge allowed the application by the 8th defendant but only to the extent of her 1/16 share in the said land.

[13] Dissatisfied with the order of the learned judge the appellants appealed and these appeals thus came before us.

[14]Having heard the arguments we came to the following decisions, namely:

(a) In respect of the first appeal we dismissed it with costs to be taxed and the deposit to the respondents to account for taxed costs. We were unanimous that s. 8(2) of the Limitation Act applies. We were also of the view that there is merit in the issue of bona fide purchaser not only in relation to the appellant in the third appeal but also to the 2nd respondent in the first appeal, namely OCBC Bank (Malaysia) Bhd.; and

(b) In respect of second and third appeals, we allowed them with costs to be taxed and their deposits to be refunded. In other words, we set aside the order the learned High Court Judge to exclude 1/16 share of the 8th defendant.

[15] The appellant in the first appeal is now appealing to the Federal Court against our decisions. This is therefore the reasons in coming to our decisions.

[16] From the submissions made before us we opined that the determinative issues for consideration should be as follows:

(a) whether the non-service of the originating summons amounts to mere irregularity or a nullity;

(b) whether the 8th defendant's application is time barred by virtue of s. 8(b) of the Limitation Act 1953; and

(c) whether s. 340 of the National Land Code confers an indefeasible title on the 2nd intervener.

Issue (a)

[17] The 8th defendant contended that O. 10 r. 5 of the Rules of the High Court 1980 (RHC) requires an originating summons to be served in a manner as a writ ie, O. 10 r. 1(1) and O. 83 rr. 2(2) and 3 also require service on th