The Limitation Act 1953 applies to charges under the National Land Code, with the twelve-year limitation period commencing once the right to receive the money secures the charge, rather than from the date of default.

[1] This was an appeal against the decision of the Land Administrator who, on 24 May 2015, pursuant to s 418 of the National Land Code had granted in favour of the chargee respondent, an order for sale of land located at Lot 42190 Mukim Batu, Negeri Wilayah Persekutuan [subject land]. By Originating Summons, the appellants sought to set aside that order for sale on the primary basis that there is cause to the contrary; that the order sought is barred by the Limitation Act 1953 .

[2] The Originating Summons was dismissed and the issue on appeal concerns the matter of whether s 21(2) of the Limitation Act 1953 applies.

[3] At the time of hearing of this appeal, the case in Sivadevi Sivalingam v. CIMB Bank Berhad , [2018] 5 MLJ 82 [Civil Appeal No: J-02(A)-59-01/2017] was also under consideration. As the two cases concerned the same issue, the parties were asked to address us on the same concerns that arose in that appeal; namely whether s 256 and the related provisions to s 256 of the National Land Code is substantive or procedural law; the relevance and application of the various provisions of s 21 of the Limitation Act 1953 ; and whether res judicata applies.

[4] Having heard the respective counsel and having had the benefit of further submissions of both learned counsel, this is our decision.

Brief Facts

[5] The Pacific Bank Berhad had granted various loan and overdraft facilities to the appellants. Two charges were created and registered over the subject land in favour of The Pacific Bank Berhad in respect of those facilities. When the appellants defaulted in their repayment obligations, The Pacific Bank Berhad issued a Notice of Demand on 15 April 1998 and 20 May 1998. Subsequently, The Pacific Bank Berhad terminated the facilities and sued the appellants by way of a civil suit filed on 8 June 1998. A summary judgment was entered on 14 August 1999.

[6] At the same time, The Pacific Bank Berhad initiated "foreclosure action", issuing a separate letter of demand on 21 June 1998 followed by a Form 16D Notice under s 256 of the National Land Code on 27 September 1998. As the subject land was held under a land office title, this first "foreclosure action" was made to the Land Administrator of Wilayah Persekutuan.

[7] On 10 March 1999, the Land Administrator held an inquiry unders 256 of the National Land Code and on 6 May 1999, granted an order for sale. This order was set aside by the High Court on 9 December 1999 with liberty to the respondent to apply for a fresh order for sale of the subject land. The respondent's appeal was dismissed by the Court of Appeal on 29 June 2004. No further action was thereafter taken by The Pacific Bank Berhad.

[8] Subsequently, the assets of The Pacific Bank Berhad were vested with the present respondent. On 22 February 2010, the respondent caused a fresh Notice of Demand to be issued followed by a fresh Form 16D Notice. Both were served at the appellants' last known addresses. There were no remedial action by the appellants and on 27 May 2014, the respondent sought an order for sale under s 256 of the National Land Code. The appellants attended the enquiry and despite raising objections, the order for sale was granted by the Land Administrator.

[9] The appellants appealed to the High Court under s 263 of the National Land Code. The principal issue is that of limitation under ss 6 and 21 of the Limitation Act 1953 .

[10] Insofar as the argument under s 6(3) of the Limitation Act 1953 is concerned, the appellants maintained that the respondent was bound by what is referred to as "the final order of 9 December 1999"; that is, the order