JUDGMENT

Low Hop Bing J:

Appeal

The matter before me is encl. (93) by way of notice of appeal to me as judge in chambers filed by the defendant against the decision of the learned deputy registrar ("the registrar") who had on 7 November 2001 allowed with costs the plaintiff's application in encl. (84).

Prayers Sought In Plaintiff's Application

Plaintiff's application in encl. (84) sets out the following prayers:

1. Plaintiff diberi kebenaran untuk memfailkan Perintah Larangan yang baru terhadap tanah Lot P.T. 2227 H.S. (D) 34499 dan Lot P.T. 2228 H.S. (M) 25 Mukim Krubong, Melaka;

2. Writ Penyitaan dan Penjualan disini yang bertarikh 2hb Jun 2000, dilanjutkan tempoh masanya dari 1hb Jun 2001 sehingga 31hb Mei, 2002;

3. Lain-lain relif; dan

4. Kos permohonan ini ditanggung oleh Defendan.

[My translation:

1. Plaintiff be given leave to file a new Prohibitory Order against the land Lot P.T. 2227 H.S. (D) 34499 and Lot P.T. 2228 H.S. (M) 25 Mukim of Krubong, Melaka;

2. The Writ of Seizure and Sale herein dated 2 June 2000 be extended from 1 June 2001 to 31 May 2002;

3. Other reliefs; and

4. Costs of this application be borne by the Defendant.]

Observations On Plaintiff's Grounds Of Application

The plaintiff's grounds of application are set out at pp. 1 and 2 of the summons in chambers in the following terms:

1. The Prohibitory Order herein dated 2 June 2000 has lapsed on 1 June 2001 and pursuant to O. 46 r. 6(7)(sic) an order for leave to file a new prohibitory order must be made before the new prohibitory order may be filed;

2. Plaintiff is required to obtain leave to file the new prohibitory order to preserve the plaintiff's right to auction the defendant's land;

3. Other grounds are as stated in the affidavit of Yong Lin Fooi filed herein.

The affidavit of Yong Lin Fooi contains 8 paragraphs averring that:

1. The deponent is the plaintiff's solicitor having conduct of the action herein and was authorised to affirm the affidavit on behalf of the plaintiff.

2. All facts stated herein are true from personal knowledge, documents and records to which the deponent has access.

3. The deponent referred to the prohibitory order dated 2 June 2000 and the order of the court dated 29 November 2000 which extended the prohibitory order dated 2 June 2000 from 1 December 2000 until 31 May 2001.

4. The prohibitory order dated 2 June 2000 has lapsed on 1 June 2001 and pursuant to law, leave of the court is required before a new prohibitory order may be filed.

5. A public auction has been fixed for 28 May 2001 but could not be proceeded with because the sealed order for the auction cannot be extracted from the court.

6. The writ of seizure and sale dated 2 June 2000 will dispose of ("lupus") on 1 June 2001, hence an extension of time is also applied for so that it does not dispose of ("lupus") before a public auction can be fixed.

7. Plaintiff applies for leave and extension herein so that the plaintiff's right to auction the defendant's lands may be preserved.

8. On the aforesaid grounds, the deponent prays for an order in terms of this application.

The plaintiff's grounds of application contained in both the summons in chambers and the affidavit in support would immediately inspire at least three observations.

In the first instance, O. 46 r. 6(7) which appeared in the last line at p. 1 of the summons in chambers and on which the plaintiff placed reliance does not appear to have been enacted in the Rules of the High court 1980, there being no such O. 46 r. 6(7) whatsoever. This may be due to a typographical error or oversight which may have escaped the care and attention of a discerning draftsman of the summons in chambers who must undoubtedly be an advocate and solicitor. However, I am prepared to accept this as an irregularity although the proverbial stitch in time would have saved nine.

To any reasonably established or reasonably competent advocate and solicitor, it must have been obvious that the correct provision in the Rules of the High court 1980 from which the plainti