A stay of execution in civil proceedings requires more than just merit; exceptional circumstances must be shown to avoid irreparable harm.

Abu Mansor Ali JCA:

On 23 February 1998, after hearing full arguments we refused the applicant's/plaintiff's application for a stay of the learned judge's order dated 9 June 1997 granting leave to issue a writ of possession to the 2nd respondent and 3rd respondent.

The facts of this case are as follows. The plaintiff operated the business of "multi-storey car park". To enable them to carry on that business the plaintiff on 13 August 1984 obtained an overdraft from the 1st respondent bank in the sum of RM8.5 million. In return for the said overdraft the plaintiff executed with the 1st respondent a debenture dated 23 October 1991.

On 2 June 1997, the plaintiff was informed by letter that the 2nd respondent and 3rd respondent had been appointed receivers and managers of the plaintiff under the said debenture.

On 3 June 1997 the plaintiff filed a writ and took out a summons-inchambers against the respondent praying for an interlocutory injunction with a view to preventing the 2nd respondent and 3rd respondent from acting as receivers and managers of the plaintiff and entering the plaintiff's premises until otherwise ordered.

Meanwhile on 9 June 1997 the parties reached an understanding and entered a consent order. On 8 August 1997, the 2nd and 3rd respondents applied for a writ of possession against the plaintiff and the application was allowed by the Judicial Commissioner on 25 November 1997. Against this decision the plaintiff filed an appeal to the Court of Appeal. On 27 November 1997 the plaintiff applied to the High Court for a stay of 25 November 1997 order but a stay was refused by the High Court.

The plaintiff then applied, by way of a notice of motion, in the Court of Appeal, praying for a stay of High Court's order until the disposal of the plaintiff's appeal. The plaintiff then filed a certificate of urgency as the bailiff of the High Court Penang had issued a notice to vacate to the plaintiff praying that the plaintiff give vacant possession of the said premises on or before 30 January 1998.

Mr. Thayalan, the plaintiff's counsel commenced his submission by referring us to the High Court's order of 25 November 1997 giving the respondent liberty to issue a writ of possession. He submitted that the High Court's order of 25 November 1997 was contrary to the terms of the consent order of 9 June 1997. He referred us to para. (c) of the order which states:

(c) that in the event the plaintiff shall be in default of its obligations as above-mentioned the 2nd and 3rd defendants shall immediately be entitled to enter into possession of the said building and exercise all their powers and carry out all duties pursuant to the said debenture.

It was the contention of the plaintiff that the correct interpretation of that cl. (c) is that it is a mere declaration of the entitlement of the 2nd and 3rd defendants to enter and in no way can it be regarded as an order which immediately entitled the 2nd and 3rd defendants to possession. Counsel further contended that before the respondent can have possession there must be a breach and they must have an order of possession in accordance with O. 45 r. 3(1) of the Rules of the High Court 1980 which provides:

Order 45 r. 3(1) Subject to the provisions of these rules, a judgment or order for the giving of possession of immovable property may be enforced by one or more of the following means, that is to say:

(a) writ of possession;

(b) in a case in which rule 5 applies, an order of committal.

(2) A writ of possession to enforce a judgment or order for the giving of possession of any immovable property shall not be issued without the leave of the Court except where the judgment or order was given or made in a charge action to which Order 83 applies.

Counsel contended that the respondent had not duly complied with the requirement of O. 45 r. 3(3) where the plaintiff/occupier is to