Terrell JA:

The facts and arguments are sufficiently related in the judgment below.

The defendant applicant had an interest in the estate of his father Cheang Jim Hoe, and of his grandfather Cheang Hong Lim. On 24 April 1931 the applicant was adjudicated a bankrupt, and his property vested in the Official Assignee. On 27 July 1934, he obtained his discharge subject to a judgment for $600 which has not yet been fully satisfied. It is clear that, even after his discharge, any property of the bankrupt which belonged to him prior to his bankruptcy was still vested in the Official Assignee, and that the bankrupt was only entitled to the surplus, if any.

On 17 December 1935 the applicant executed a charge upon his share in his father's and grandfather's estates in favour of the plaintiff to secure moneys due, or to be due, on current account up to a total amount of $1,500 with interest at 240 per annum. At the same time the applicant executed a promissory note for $1,400 repayable by 20 instalments. It is not disputed that no payment was made in respect of the promissory note, or that written demand for payment was made on 5 March 1937 and that such demand was not complied with. Thereupon the plaintiff was in a position to enforce his security by sale under the provisions of the Conveyancing and Law of Property Ordinance.

Before this notice of demand was given there had been correspondence between the plaintiff's solicitors and M/s. Zehnder Bros who were solicitors for the executrix of Cheang Jim Hoe's estate, with reference to a proposed garnishment of the applicant's interest, and on 4 March 1937, another client of M/s. Zehnder Bros, one Low Phua Min, offered to buy the properties comprised in the charge for $1,000 together with interest at 15 0.000000 from 17 December 1935. M/s. Zehnder Bros were not willing to accept an assignment in pursuance of the plaintiff's power of sale, and first of all suggested that the plaintiff should foreclose, as there might be difficulties in preparing particulars and conditions of sale in the case of a sale by auction. Later M/s. Zehnder Bros suggested an application to Court to sell by private treaty. This proposal was accepted by the plaintiff's solicitors on 5 March 1937 and they proceeded to prepare their application to Court and the affidavit in support. These documents were approved by M/s. Zehnder Bros, and on 22 March 1937 the Originating Summons was filed. The Originating Summons asks for an order "That the plaintiff be at liberty to sell out of Court by public auction with or without reserve or by private treaty, all that the property of the defendant described in the Schedule hereto etc."

The application is entitled "In the matter of O. 52 r. 4" which enables a mortgagee to apply by Originating Summons to enforce his security by sale, foreclosure, etc. An order for sale under this rule results in a sale by the Court. A sale out of Court can only be made under the provisions of O. 48 r. 2. I mention this as Mr. Green argued that this was a simple application under O. 52 r. 4, while in fact it was an application asking the Court to invoke the special provisions of O. 48 r. 2. There is no substance in Mr. Green's argument that O. 48 only applies to a sale of immovable property. This may be correct of O. 48 r. 1, but it is certainly not correct of O. 48 r. 2, which is far wider in its terms. In any case the order asked for, and subsequently made, could not have been under the provisions of O. 52 r. 4 without invoking the aid of O. 48 r. 2.

It is to be noted that the whole object of the application was to sell the property to a particular purchaser at an agreed price, and that being the case, an application could have been made under O. 52 r. 1(1)(f) to approve a conditional contract. No doubt if such an application had been made the Court would have required to be satisfied that the price offered was a fair price.

One can only speculate why the application included a prayer