Arifin Zakaria JCA:

This is an appeal against decision of the learned judge in refusing the appellant's (plaintiff) application for an order that the appellant be allowed to commence execution proceedings against the respondent (defendant) pursuant to an order of court dated 21 January 1988 although six years had lapsed since the making of the order. The application was pursuant to O. 46 r. 2(1)(a) of the Rules of the High Court 1980.

When this appeal came up for hearing the respondent was absent but we proceeded to hear the appeal in the absence of the respondent. Having heard submission of counsel for the appellant we dismissed the appeal. Now we give our reasons for our decision.

The relevant facts as disclosed by the affidavit filed in support of the appellant's application are briefly as follows. The appellant had on 21 January 1988 obtained a judgment in default of appearance against the respondent wherein the respondent was, inter alia,ordered to pay the sum of RM47,579.96 together with interest at the rate of 10% p.a. from 13 July 1986 to the date of full and final realisation. Thereafter a bankruptcy notice was filed on 27 August 1993 against the respondent by the former solicitors for the appellant, which was served on the respondent by substituted service. The appellant's solicitors then filed an application to amend the bankruptcy notice and the application for leave to file the creditor's petition. Following which the creditor's petition together with the affidavit of truth of statement were filed. The creditor's petition was fixed for hearing on 24 July 1996. On that date the then counsel for the appellant was absent and the court then struck off the creditor's petition. Some time in 1998 the appellant retained the present solicitors and this application was filed on 27 August 1999 by the present solicitors.

The learned judge in dismissing the appellant's application gave the following reasons:

Whilst the plaintiff has indeed filed an application for leave within the 12-year expiry period as provided under s. 6(3) of the Limitation Act 1953, and read together with O. 46 r. 2(1)(a) of the RHC, yet the leave asked for can only be given based on reasonably acceptable grounds. In this case, the plaintiff has totally failed to explain why it did not execute within the 6 years provided under O. 45 r. 2(1)(a), other than implying that its previous solicitors had failed to act. The negligence, if any, of the plaintiff's solicitors is no reason why the defendant ought to suffer, by paying excessive interests for all these years. Yet again the plaintiff has failed to give any reason as to why it failed to act immediately after the expiry of the first 6 years and up to the date of filing this application. To my mind the plaintiff ought to have given very cogent and acceptable reasons to enable this court to exercise its discretion in its favour to grant the leave.

It is trite that the grant of leave under O. 46 r. 2 is in the court's discretion. Order 46 r. 3 states that an application under O. 46 r. 2(1) must be supported by an affidavit stating, when the case falls within r. 2(1)(a), the reasons for the delay in enforcing the judgment or order. Therefore, it is incumbent upon the applicant to furnish the court with sufficient reason in support of such an application. What is sufficient reason? This naturally will vary from case to case. It is not possible for this court to provide an exhaustive list of what is considered to be sufficient reason. By way of illustration, in Tio Chee Hing v. chung Khiaw Bank Ltd [1982] CLJ 352 (Rep) [1982] CLJ 23; [1981] 1 MLJ 227 the reasons given for the delay was that there were negotiations for settlement by arrangement. The High Court there accepted that as being sufficient reason and the Federal Court agreed with the trial judge. In Public Bank Bhd v. Seato Trading (M) Sdn Bhd & Ors [1995]; [1996] 1 MLJ 165 Zakaria Yatim J (as he then was) stated that:

it was proper for the pl