This is the plaintiffs application dated 3 September 1997 (encl 3), asking for an order, inter alia, that the Caveat Instrument No L715/1997 lodged by the plaintiff and registered at the Samarahan Land Registry, against all that parcel of land situated at Sungai Bakar, 27th Mile Kuching/Serian Road, Serian containing an area of 2,752 square metres, more or less, and described as Lot 478 Block 1 Bukar-Sadong Land District, shall not lapse until the trial of the plaintiffs case registered in the Magistrates Court of Kuching as Summons No 72-930-97 and in the event that judgment is given in favour of the plaintiff in the said case, until a prohibitory order has been obtained and lodged against the said land.

In the present application, the second defendant took a loan of RM10,000 from the plaintiff with the promise to pay back within one month. The said loan was secured by a promissory note executed by the second defendant as well as a pledge of the second defendants land as described above. Pursuant to the said pledge given by the second defendant in writing, the plaintiff on 13 March 1997 lodged a caveat against the said land.

On 7 July 1997, the first defendant through the assistant registrar, issued a notice under s 178 of the Sarawak Land Code (Cap 81) to the plaintiff, indicating that an application for the registration of a memorandum of transfer had been made in respect of the said land. The abovesaid application was taken out by Messrs Tang & Tang and Wahap & Ngumbang Advocates on behalf of the second defendant and third defendant herein. As such, the caveat lodged by the plaintiff shall upon the expiration of the three months as stipulated in s 178, from the time the said notice was given to the plaintiff, be deemed to have lapsed, unless the plaintiff informed the first defendant within the said period of three months that an application for an order to the contrary has been made to the High Court. The plaintiff had on 5 November 1997 obtained an extension of time to serve the order as prayed for in the present application on the first defendant.

From the very outset, it must be noted that the objection to the present application of the plaintiff was taken up by the third defendant and not the second defendant, who is the registered proprietor and caveatee of the said land. Although both the plaintiff and the third defendant did not give any thought to this issue, this court is most concerned as to the legal standing of the third defendant in objecting to the extension of caveat sought by the plaintiff (see Teng Hung Ping v Hoan Siew Choo & Ors [1993] 2 CLJ 662 and Cheong Kong Enterprise Co Sdn Bhd v Foong Seong Mines Ltd & Ors [1969] 2 MLJ 246).

Be that as it may, it is not in dispute that the only pertinent issue in the present application is the question pertaining to the status of the pledge given by the second defendant. Due to its importance, the full text of the said pledge is reproduced as follows:

Messrs Pau Ming Mortgage Sdn Bhd Date: 11 March 1997

Lot 7404, First Floor

Jalan Simpang Tiga, 93300 Kuching

Dear Sirs

Loan of RM10,000

I, Chin Pak Chong (BIC K804112 now replaced by WN KP 620823-13-5377) of

No 332 Lorong 4F, Tabuan Desa, 93350 Kuching, Sarawak, in consideration

of your granting a loan of Ringgit Malaysia Ten Thousand Only (RM10,

000) to me, which loan I have agreed with you to repay the same within

one (1) month from the date of the full drawdown of the loan, I hereby

pledge to you, as security, all my right title share and interest in

all that parcel of land situated at Sungai Bakar, 27th Mile,

Kuching/Serian Road, Serian, Sarawak containing an area of 6,799 square

metres, more or less and described as Lot 478 Block 1 Bukar-Sadong

Central Land District.

For the purposes of this pledge and the loan, the word month shall be

construed to mean a period of thirty (30)