Gopal Sri Ram JCA:

This is the judgment of the court.

This appeal is directed against the order of the High Court in Penang whereby the appellant's application to set aside an order for sale was dismissed. The brief factual matrix against which this appeal rests is as follows.

The charge which is the subject matter of the present litigation was executed as long ago as 1986. The appellant having defaulted in its obligation to make prompt re-payment, the respondent bank instituted foreclosure proceedings in November 1988. The originating summons claiming the appropriate statutory relief was duly served on the appellant. It entered an appearance and retained counsel who appeared on the date appointed for the hearing of the summons. No affidavit in opposition to the bank's application was ever filed. Neither was objection taken as to the non-observance of any rule of court. There was simply no resistance at all. So, on 5 April 1989, the judge sitting in chambers granted the bank the relief sought. Then, the usual procedural steps were set in motion to have the land sold in public auction. Several attempts were made to sell off the land. But there were no buyers at each auction that was held. Then, on 19 March 1997, that is to say, some eight years after the order for sale was granted, the appellant took out a summons to set that order aside. The High Court dismissed that summons. The appellant has now appealed against that dismissal.

Only one ground was advanced in support of the appellant's application in the court below. It was repeated before us on Monday (9 June 2003) when we heard arguments on the appeal. It is that the order for sale is invalid because the affidavit in support of the originating summons did not comply with RHC O. 83 r. 3in that it did not state the amount due as at the date on which the court was being moved for an order for sale. The appellant's case is that r. 3 of O. 83is mandatory in nature so that a failure to comply with its terms fatally flawed the order for sale. The argument goes that there is no discretion in the judge to refuse the appellant's application because the order for sale is a nullity and the appellant is therefore entitled to set it aside ex debito justitae, that is to say, as of right, without the court going into the substantial merits of the case.

Now, as a first step to deciding this appeal, it is essential that the principle applicable to the facts must be identified. To this end, it is important to notice a feature of this case that is of critical importance. This is not a case where the impugned order was obtained ex partethe appellant. It was not an order made in default of the appellant's appearance. The order here was made inter partes. The appellant was very much present by its advocate at the hearing of the bank's summons to foreclose. The principle applicable to the setting aside of such an order was set out by Chang Min Tat FJ in Hock Hua Bank v. Sahari bin Murid[1981] 1 MLJ 143, 144:

Clearly the court has no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) so far as is necessary to correct errors in expressing the intention of the court: Re St Nazaire Co12 Ch D 88, Kelsey v. Doune[1912] 2 KB 482; Hession v. Jones[1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v. Neotia & Co[1918] AC 888 and Jonesco v. Beard[1930] AC 298. The hearing of the action will in a proper case be expedited:Smith v. Peizer65 SJ 607.

Now, it is true that his