Shaik Daud Mohd. Ismail JCA:

This appeal arises from the decision of the Seremban High Court given on 22 September 1995 wherein the learned Judge, inter alia, set aside that part of an earlier order dated 8 October 1990 handed down by the same Court which ordered that the land held under tittle No. EMR 315, Lot 342 Mukim Repah Tampin, Negeri Sembilan (the land) be sold by public auction and/or private treaty.

The facts of the case are that the respondents are registered owners of some 11 acres of land held under Malay Reservation. They entered into a joint venture agreement with one Ismail b. Omar to develop the land into a housing scheme. In order to get funds for the scheme Ismail b. Omar applied for and obtained a loan of RM400,000 from the appellant. The loan was granted and as security for the loan the land was mortgaged to the appellant. Unfortunately the appellant was not competent to hold the mortgage over the land as it is not considered to be a Malay or a Malay holding. Under s. 7 of the Malay Reservation Enactment FMS Cap 142 only a Malay or gazetted Malay holding is capable of holding Malay Reservation land. Unfortunately also the joint venture failed and Ismail b. Omar ended up owing the appellant to the tune of some RM300,000. Accordingly the appellant commenced proceedings against Ismail bin Omar for the recovery of the money owed.

The respondents in the meantime applied for a declaration that the mortgage held by appellant was invalid by virtue of s. 7 of the Malay Reservation Enactment FMS Cap 142. On 21 March 1988 the Seremban High Court Judge, the late Mustapha Hussain heard the respondent's application and made the following orders:

(1) the mortgage was invalid;

(2) the order by the Land Administrator Tampin given to the appellant for the sale of the land was also invalid;

(3) the Land Administrator is ordered to cancell the entry of the mortgage;

(4) the applicants (now the respondents) shall return all monies delivered them by appellant;

(5) the applicants are prohibited from dealing with the land as long as the loan remains unpaid;

(6) either party be at liberty to apply in order to execute the above orders.

Following this order appellant, by Summons in Chambers dated 4 May 1988 applied for the sale of the land either by public auction or private treaty with a view to repay the loan including interest. On 8 October 1990 the late Mustapha Hussain J (as he then was) again made the following orders:

(1) a declaration that the respondents had in fact received the loan or the facility from the appellant;

(2) the respondents jointly and/or severally repay the appellant a sum of RM300,000 together with interest thereon and alternatively;

(3) the land be sold by public auction or private treaty; and

(4) the proceeds of sale to be utilised to pay the RM300,000 with interest.

It would appear that the respondents were unhappy with the 8 October 1990 order and rightly filed an appeal to the then Supreme Court. The appeal, however, was struck off on the ground that no leave to appeal had been obtained beforehand. Instead of making a fresh application for leave with all consequential orders, some seven months later the respondents commenced afresh by a Summons in Chambers dated 9 March 1995 in Seremban High Court, the same Court which gave the 8 October 1990 order albiet now being presided by a different Judge, for a declaration that that part of the 8 October 1990 order was invalid. The part they seek to be declared invalid is the alternative order of sale by either public auction or private treaty. The latest Summons in Chambers was in fact heard on 22 September 1995 before Dato' Mohd. Noor b. Hj. Abdullah J, who at that date presided over Seremban High Court. The learned Judge allowed the application and accordingly set aside that part of the order given on 8 October 1990.

Let us pause at this point to say that without going into the merits of the 8 October 1990 order, we would have thought