Zakaria Yatim J

In this application, the plaintiff sought the order of the court in terms of the following prayers:

(i) the plaintiff be given leave to issue execution and/or commence bankruptcy proceedings against the third defendant abovenamed upon the judgment herein dated 22 May 1986, notwithstanding that six years have elapsed since the date of the judgment;

(ii) that the defendants do pay the costs of and occasioned by this application; and

(iii) all other directions and orders this honourable court deems fit.

At the commencement of the hearing, Miss Sabriya Khan, counsel for the third defendant, objected to the words 'and/or commence bankruptcy proceeding in the application'. After hearing the arguments of both counsel on the objection, I ruled that I would not consider those words in prayer (i). I then proceeded to hear the application for leave to issue execution.

In this case, the plaintiff obtained judgment for a sum of RM757,808.40 with interest accruing thereon at 15%pa with monthly rests from 1 March 1985 till the date of realization, and RM350 as costs. The third defendant made a total number of six repayments during the period between 16 May 1990 and 29 March 1991. The amount still owing as at 15 May 1995 was RM1,841,929.74.

Mr Arthur Yap, counsel for the plaintiff, submitted that although six years had lapsed from the date of the judgment, no injustice or prejudice would be caused to the third defendant if leave to issue execution proceedings was granted. He added that in allowing time for the third defendant to make repayments, the plaintiff was only protecting its own interest by not putting any further pressure on the third defendant as it would jeopardize the settlement of the debt. He cited Tio Chee Hing v Chung Khiaw Bank Ltd [1981] 1 MLJ 22 . He further submitted that the court ought not to dismiss the plaintiff's application on the ground of delay and laches.

Miss Sabriya Khan submitted that the court should exercise its discretion judicially when considering whether or not to grant leave to issue execution. She said that there must be sufficient grounds for the court to exercise its discretion. According to Miss Khan, the third defendant had made payments. The last payment was made on 29 March 1991. The plaintiff had foreclosed two pieces of properties. She contended that the plaintiff had not attempted to issue execution for more than one year. She said that judgment was obtained against the other two defendants. The plaintiff would be given preferential treatment if leave was granted. The plaintiff should not be allowed to execute as of right. She cited Lamb (WT) & Sons v Rider [1948] 2 KB 331 ; [1948] 2 All ER 402 in support of her argument.

I have read Lamb & Sons v Rider. In that case the English Court of Appeal said at p 399, 'In our judgment, however, the issue of execution is within the discretion of the court after six years have lapsed, even where no such change has occurred.'

Applying Lamb & Sons v Rider to the present case, I have the discretion to grant leave to issue execution even though six years had lapsed. I think it was proper for the plaintiff not to issue execution when the third defendant was making payments. In Tio Chee Hing v Chung Khiaw Bank Ltd, the respondents had obtained leave to issue execution against the appellant on two judgments entered more than six years earlier. The reasons given for the delay were that there were negotiations for settlement by arrangement. The Federal Court held that the learned judge had exercised his discretion properly.

In Malayan Banking Bhd v Foo See Moi [1981] 2 MLJ 17 , the appellant obtained judgment in default of defence against the respondent for the sum of RM674,539.53 with interest. There was subsequent correspondence between the parties and it was agreed that the respondent should pay RM850,000 in full settlement, out of which RM700,000 was to be paid forthwith and the balance by instalments. The sum of RM800,000 was paid, l