Edgar Joseph Jr J:

Broadly stated, the dominant question of law which arises for decision in this case is whether a sale of land in attachment proceedings must be carried out when a prohibitory order, registered against it, is in force.

Specifically, the question for decision is whether an order for sale of lands, in attachment proceedings, can be successfully impugned, if it can be demonstrated to the satisfaction of the Court, that prior orders extending the duration of the relevant prohibitory order, registered against the lands, had been obtained upon insufficient affidavits.

For brevity and convenience, all references to sections in this judgment are, unless the context otherwise requires, to the National Land Code 1965 (the Code).

The history of the matter which calls for the consideration of the Court would seem to appear in the unchallenged affidavit evidence filed on behalf of the judgment creditor and can be shortly stated.

On 21 March 1988, the plaintiff (the judgment creditor) had obtained default judgment against the third defendant (the judgment debtor) in the aggregate sum of RM258,765.39 together with interest thereon and costs under a guarantee particulars whereof are not material to the issues which now arise for decision.

On 5 September 1988, the judgment creditor caused to be issued, by the Senior Assistant Registrar, a prohibitory order under O. 47 r. 6(1) of the Rules of the High Court 1980 (RHC) directed at certain lands comprised in Lot Nos. 002344, 002354, 002356, 002357, 002358, 002359 and 002345 Section 2, Bandar Butterworth, Penang, held under Suratan Hakmilik Sementara No. HS(D) 797, 807, 809, 810, 811, 812 and 798 - seksyen 2, the properties of the judgment debtor (the lands) and duly registered at the land office on 13 September 1988.

On 28 December 1988, the judgment creditor caused to be issued a writ of seizure and sale.

On 10 March 1989 the judgment creditor applied, ex parte, to the Senior Assistant Registrar, on affidavit affirmed to by its Counsel, and obtained an order extending the duration of the prohibitory order for a period of six months, purportedly, in compliance with O. 47 r. 6(5) which provides:

Upon the application of any judgment creditor on whose application a prohibitory order has been issued by 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 referred to in sub-rule (4), for any period not exceeding six months, provided that no order made under this rule shall have any force or effect unless it is presented for registration at the Land Office or Registry of Titles before the expiration of the prohibitory order which such order purports to extend;

With all due respect, the affidavit affirmed to by Counsel for the judgment creditor on 1 March 1989 filed in support of the application for extension of the prohibitory order contained precious little. Omitting formal and introductory matter, the only ground relied on appears in para. 3 thereof which reads:

Since the prohibitory order has been granted we have taken the necessary steps for the sale of the said properties but have been unable to do so within the six months period.

The judgment creditor then caused a summons for an order for sale of the lands (encl. 6) to be issued and upon the hearing thereof, on 4 May 1989, Counsel for the judgment debtor raised an objection relying only on one ground. It was said that the judgment creditor had not taken out a writ of seizure and sale in form 88 prescribed by O. 45 r. 12 prior to the issue of the prohibitory order. This assertion was, of course, factually incorrect for the judgment creditor had in fact done so.

An order for sale was then made on the same day, that is to say, on 4 May 1989, and a date fixed for sale by public auction. There was no request for further argument and so no appeal was lodged against the order for sale.

On 19 July 1989, upon the applicati