JUDGMENTBY: LAVILLE, AGJ, TERRELL AG, CJ (SS), POYSER, CJ (FMS), GORDON-SMITH, AG JA

LAVILLE, AGJ In this Originating Summons a judgment creditor Tan Jee Tee of the deceased Leong Eng Toon applied through his attorney Tan Kah Eur that the said attorney should be appointed receiver by way of equitable execution under section 275A of the Civil Procedure Code of the property of Leong Eng Toon for the purpose of realising the amount of the debt.

The application was made by Originating Summons under the provisions of section 472 of the Code. That section states any application to the Court in its civil jurisdiction not being between a plaintiff and defendant and not being in a pending suit or matter shall ordinarily be made by way of O.S. unless some other mode of procedure is prescribed by written law.

This application is not between a plaintiff and defendant nor in a pending suit or matter and therefore subject to there being no prescribed mode of procedure could be made by O.S. But it is clear from the Civil Procedure Code that a procedure has been prescribed. The application is essentially one for execution of a judgment debt and though under English law equitable execution is rather in the nature of relief than proper execution it has been held in Blackman v Fysh (1892) 3 Chancery p 209 to come within the term "Execution by process of law". In our Code the process of relief by way of equitable execution is clearly put on the same level as other methods of common law execution: section 275A is inserted in Chap. XXIV which is headed "Execution of Decrees" and under the sub-head "Mode of Execution". It is in my view impossible to reach any other conclusion than that an application for the appointment of a receiver under section 275A is an application for execution of a decree by that method. It follows that the procedure for obtaining such an order is the procedure laid down by Chap. XXIV of the Code, and is not by way of O.S. I am confirmed in this opinion by the ruling, in Wai Seng Leng v Chait Singh 8 MLJ 316 that execution under section 275A is not the same as equitable execution in England. The Code lays down a clear and convenient procedure for applying for different methods of execution under Chap. XXIV, and in my opinion this procedure should be followed. I agree with the dictum in Leonord v Nachiappa Chettiar FMS Reports IV at p 268 that on questions of procedure the analogies of English law should be followed with great caution and only if the local code has laid down no definite procedure to cover the point and an analogy from other parts of the Code is impossible or highly inconvenient.

It follows therefore that the application should have been dismissed for having been wrongly framed in that it was not made in the cause or matter which was the subject of the judgment sought to be satisfied, and in that the decrees in 2 separate judgments were consolidated without leave.

In other respects also the order was wrong, in that by appointing the agent of a creditor of the estate as receiver with power to realise his debt preference was given to one creditor over others which is contrary to law vide Re Case (1892) WN 142 and In re Shepherd 43 CD 131.

For these reasons I am of opinion it should be set aside. The point has been taken by respondent to the motion that the application to set it aside made by way of motion is incorrect. I agreed with him on this point: the application for appointment of a receiver being an application for execution as decided in Wai Seng Leng v Chait Singh 8 MLJ 316, and execution in that form having been granted, an application to set it aside must follow the provisions of sections 298 & 299 Civil Procedure Code, and if it is out of time, an extension of time should be applied for.

In view of the fact that the procedure which should have been employed is one laid down by enacted law and is not a rule of Court I have no authority or precedent for relaxing the provisions of the law and mus

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