The 3rd Defendant has passed away before the commencement of this action. The 1st Defendant passed away on 31.8.2005, midway through the action, while the 2nd Defendant is now 90 years old.

All 3 Defendants are the registered proprietors of a piece of land held under lot 4934 Geran No. 17672, Mukim Benut, Daerah Batu Pahat, Johor. It was alleged that on 5.2.1987, all the 3 Defendants executed a 3rd party charge over the said land in favour of the Plaintiff to secure a loan of RM2000,000.00 granted by the Plaintiff bank to one Gnanavathy d/o Ambiavagar, the borrower. The Plaintiff admitted that only RM100,000.00 was disbursed.

On account that the borrower had defaulted in repaying the said loan, the Plaintiff commenced this action to enforce the statutory charge by way of an order for sale pursuant to section 256 of the National Land Code (NLC) 1965 and Order 31 and Order 83 Rule 1 of the Rules of the High Court (RHC) 1980.

The Defendants denied ever executing the said charge and also relied upon a number of issues but mainly on the issue of forgery to establish cause to the contrary, a defence offered by section 256(3) of the NLC, 1965.

Learned counsel for the Defendants made a submission that on 6.11.2006, both the parties had agreed, before his Lordship, the then presiding judge, to be bound by the result of the forensic report relating to the thumbprints affixed oh the charge documents. In the event the forensic report shows that the thumbprints were forged, the court shall forthwith dismiss the Plaintiff's application for order for sale. On the other hand, if the forensic report shows that there is no forgery, the court shall forthwith grant the order for sale.

These terms, upon confirmation by both parties, were duly recorded by His Lordship in the court file. As such, it was submitted, this in effect is a consent order agreed by both parties. Now that the result of the forensic report from Pusat Pendaftaran Penjenayah Malaysia Singapura, Bukit Aman, Kuala Lumpur, is out as shown in exhibit TSS-4 of Enclosure 84, the parties are now bound by the said report even though the consequence may turn out to be unfavourable to either one of the party.

The forensic report as exhibited in TSS-4 of Enclosure 84 revealed that:-

"Cap jari pada dokumen diceraian 1.1 (Ihanik) (which refers to Acknowledgement by charge), 1.2. (Ihanik) (which refers to execution page of charge) and 1.3 (Ihanik) (which refers also to execution page of charge) adalah sama, tetapi tidak sama dengan cap jari pada ceraian 1.4 (which refers to Paspot Terhad Malaysia atas nama Hanik bte Ali, K/P 2324404)"

This findings established beyond doubt that the 3rd Defendant's thumbprints were forged. No such dissimilarities were shown in the thumbprints belonging to the 1st and 2nd Defendants.

It was thus the submission of learned counsel for the Defendants that the Plaintiff are now estopped from going against the consent judgment as indicated in the preceding paragraphs. Learned counsel for the Plaintiff offered no reply to this issue.

However, the notes of evidence recorded on 6th November 2006 only indicated the following, reproduced in full:-

"DALAM KAMAR Pada 6 November 2006

Encik Mohd Azizi bagi pihak Plaintiff

Encik S.S Tham bagi pihak Defendan

Mohd: Pohon 2 bulan

Under police investigation

Tham: On 27.10.2006, Defendant 2 telah kemukakan cop jari kepada polis, allegation of forgery of thutmbprint on charge document. Defendan I agrees to be bound by findings of police with respect to thumbprint.

Mohd: I juga setuju

Mah: 6.2.2007 (Bicara)

Sgd. Y.A. Dato'Jeffrey Tan"

Going by the notes recorded as reproduced in full above, it seems to me that there is no such consent order as submitted by learned counsel for the Defendants. What can be gathered at most is that the parties agreed to be bound by the findings that the charge documents relating to the 3rd Defendant's thumbprints were forged.

It was thus the submission of learned counsel for the Plaintiff that