Steve LK Shim J:

This is an application by the 2nd defendant who is the judgement debtor (JD) for the setting aside of the writ of seizure and sale (WSS) as well as the prohibitory order (PO) dated 12 March 1998 obtained by the plaintiff who is the judgment creditor (JC) against the JD. It is supported by the affidavit of Adian Maniza bte Mohd Zain. The JC has opposed the application.

The facts show that pursuant to an application for execution, (encl. 6), the JC filed a "Praecipe Untuk Perintah Larangan" purportedly in accordance with Form 92 of O. 46 r. 4 Rules of the High Court (RHC) in consequence of which the PO dated 12 March 1998 was granted by the learned Senior Assistant Registrar (SAR) as per encl. 3. Concurrently, the JC also filed the "Praecipe Untuk Writ Pelaksanaan" (encl. 4) for which the SAR granted the WSS as in encl. 5.

The main complaint of the JD is (1) that the WSS is unnecessary in the instant case involving immovable property and (2) that the PO dated 12 March 1998 is invalid. I shall deal with them separately. For reasons which will become apparent later, I will deal with the second proposition first.

Fundamental to this second proposition are two underlying issues raised by the JD, namely, (1) that any application for a PO has to be made to a judge and not to the SAR or inversely speaking, that only a judge has competent jurisdiction to deal with such an application and not the SAR and (2) that the PO has been wrongfully obtained by way of an improper procedure.

In respect of the first issue, Mr. Selva, counsel for the JD has drawn our attention to O. 47 r. 6(1) and (5) RHC which comes under the heading "Writs of Seizure And Sale" and which stipulates:

6. Where the property to be seized consists of immovable property or any registered interest therein the following provisions shall apply:

(1) Seizure shall be made by an order prohibiting the judgment-debtor down transferring, charging or leasing such property, or interest. For the purpose of this rule 'charging' shall include the creation of a lien by deposit of a document of title;

(5) Upon the application of any judgment creditor on whose application a prohibitory order has been issued the court or a Judge, if it or he considers that special circumstances render an extension just, may from time to time by order extend the period of six months ...

It is counsel's contention that the words underscored above can only be construed to mean (a) that a proper application has to be made and (b) that such application be made to a judge and not to the SAR. He further contends that in the instant case the PO was granted by the SAR who had no competent jurisdiction to do so.

Let me say at the outset that I accept the stand taken by counsel that an application has to be made for the PO to be issued. However, there is no specific made or procedure provided under the Rules as to how this is to be done but I understand there is a practice that it is done through the filing of a "Praecipe Untuk Perintah Larangan" addressed to the Pendaftar, Mahkamah Tinggi, who, after consideration, would issue what is called a "Perintah Larangan Penahanan Dalam Pelaksanaan". It is also the practice that there would be a concurrent application by the JC for the issuance of a WSS against the JD through the filing of a "Praecipe Untuk Writ Pelaksanaan", although there have been cases which appear to indicate that protracted and separate applications were allowed. (See Karuppiah Chettiar V. Subramaniam [1971] K Murugesu v. Michael Chong Ngian Fong, K Murugesu v. Registrar of Titles & Ors [1980] 2 MLJ 84; Ban Hin Lee Credit Sdn Bhd v. Utama Computer Centre Sdn Bhd [1991] 1 CLJ 711). The same cases also seem to indicate that where separate applications were made, it was the practice to apply for the PO before the WSS.

Mr. Selva has further submitted that the SAR was not the competent jurisdiction to deal with any application for a PO. In this connection, he draws suppor