A judgment creditor must obtain prior leave from the Court before commencing bankruptcy proceedings if more than six years have elapsed since the judgment.

[1] These two related appeals, which involved similar issues of law and so were heard together, are against the judgment of the Court of Appeal dated 29 May 2012 which dismissed the appellants appeals with costs. Leave to appeal was granted by this Court on 21 November 2012 (that is, before the decision of this Court in Ambank (M) Berhad v. Tan Tem Son & Another Appeal, [2013] 3 MLJ 179) on the following questions of law:

"(1) Whether upon a true and proper interpretation of s 3(1)(i) of the Bankruptcy Act 1967 , it is a mandatory requirement that a judgment creditor who intends to commence bankruptcy proceedings after more than six years from the date of the judgment, must obtain prior leave of Court pursuant to O 46 r 2 of the Rules of the High 1980 (or O 31 r 2 of the Subordinate Courts Rules 1980) at the material time of filing the bankruptcy notice?;

(2) Whether the observation of the Federal Court in Perwira Affin Bank Bhd v. Lim Ah Hee , [2009] 3 MLJ 253 to the effect that such prior leave of Court was not required, was decided in accordance with the requirements of s 3(1)(i) of the Bankruptcy Act 1967 , or whether it was decided per incuriam?"

[2] We need only to deal with Civil Appeal No: 03(F)-5-12-2012(W), as it was agreed that the outcome in the latter appeal would bind Civil Appeal No: 03(F)-6-12-2012(W).

[3] The pertinent facts may be briefly stated as follows: By a consent judgment dated 10 October 2000, the appellant was ordered to pay RM554,000.00 to the respondent, by way of the following instalments: (a) RM54,000.00 to be paid on or before 15 November 2000, followed by (b) consecutive monthly payments of RM20,000.00 each, from 15 November 2000 until full settlement. The appellant failed to settle the judgment sum. The respondent issued a certificate of indebtedness which stated that the appellant owed the sum of RM350,000.00.

[4] On 3 January 2011, the respondent issued a bankruptcy notice for the sum of RM350,000.00, and had the same served on the appellant on 4 January 2011. The appellant applied to set aside the bankruptcy notice on the ground that the bankruptcy notice was invalid and liable to be set aside ex debito justitiae, it being issued without the leave of Court as required by O 46 r 2(1)(a) of the Rules of the High 1980 (RHC). On 15 September 2011, the learned Senior Assistant Registrar dismissed the appellants application to set aside the bankruptcy notice. The appellant appealed to Judge in Chambers. On 9 November 2011, the learned judge dismissed that appeal with costs. Abdul Aziz Abdul Rahim J (as he then was) held as follows:

"The only issue in this case is whether a bankruptcy is a writ of execution within the meaning of O 46 r 2 Rules of the High 1980 and, if so, whether judgment creditor required leave before requesting for the Bankruptcy Notice to be issued. On the doctrine of stare decisis this Court is bound by the Federal Court decision on 2004 in Perwira Affin Bank Bhd v. Lim Ah Hee , [2009] 3 MLJ 253 that bankruptcy proceeding is not executionary proceedings in the sense that it is a continuation of a judgment and that no leave is required to issue the bankruptcy notice after six years."

[5] The appellant appealed to the Court of Appeal, where the issue was whether the issuance of a bankruptcy notice requires prior leave of Court under O 46 r 2(1)(a) of the RHC (since replaced by the Rules of 2012) where six years or more have lapsed since the date of the final judg