Heliliah Mohd Yusof J:

This is an appeal against the decision of the deputy registrar in dismissing the summons in chambers filed by the plaintiff to obtain a new auction date, reserve price and other ancillary orders. About 14 years ago an order for sale ("original order") had been granted on 5 September 1988 whereby the defendant's land held under Grant No. 7188 Lot No. 94 Mukim of Ulu Kelang, Negeri Selangor, which was then charged to the plaintiff was to be sold by public auction to recover the sum of RM4,082,984.91. The original order had also determined that the sale was to take place on 11 February 1989. For reasons which are not known the sale did not take place. In addition it is also to be noted that no appeal was lodged against the original order. Subsequently it transpired that several auction dates had been refixed but no sale was completed as there were no bidders.

The next relevant date to note is 17 October 2000. On that date upon an application made by the plaintiff and in the presence of counsel for both the plaintiff and defendant a new auction date was granted by another deputy registrar then and it was to have taken place on 12 December 2000. That particular order also included a term whereby there was to be a reduction in the reserve price. Consequently the defendant lodged an appeal against that decision of the deputy registrar to a judge in chambers apparently on the basis of being dissatisfied with the reduction of the reserve price. The appeal was heard on 7 November 2000 and the auction date that was scheduled for 12 December 2000 was set aside. The plaintiff was further instructed to submit a new valuation report to support any further application for a reduced reserve price. Pursuant to this decision the plaintiff's solicitor filed a fresh application for directions for the purposes of obtaining a new auction date which was made on 11 January 2002 (encl. 140). The affidavit of the plaintiff filed in support of the application also included a new valuation report with the reserve price being requested to be fixed at RM4,500,000. On 29 July 2002, the deputy registrar heard the application and upheld the arguments advanced by the counsel for the defendant whereby the deputy registrar dismissed with costs the plaintiff's application on the ground that he had no jurisdiction to give a new auction date as the first auction on 11 February 1989 which had originally been fixed by the learned judge Dato' NH Chan (as he then was) was not proceeded with and as such a new auction date would have to be refixed by a judge pursuant to s. 257 of the National Land Code('NLC'). The decision of the deputy registrar was as follows:

Defendan dalam menentang permohonan Plaintif ini menimbulkan isu bidangkuasa saya untuk mendengar permohonan ini. Alasan Defendan ialah, saya tiada bidangkuasa untuk beri tarikh lelongan ini kerana lelongan yang pertama kali ditetapkan oleh Y.A. Hakim, iaitu pada 11 Februari, 1989 telah tidak dijalankan dan dengan itu, tarikh baru lelongan perlu ditetapkan semula oleh Y.A. Hakim menurut seksyen 257 Kanun Tanah Negara.

Saya telah meneliti perkara ini dan bersetuju dengan hujah peguam Defendan ini. Saya hanya boleh menjalankan kuasa di bawah seksyen 259 Kanun Tanah Negara jika lelongan pada 11 Februari, 1989 dijalankan. Dalam kes sekarang, daripada rekod mahkamah, tiada ditunjukkan lelongan awam dijalankan pada 11 Februari, 1989.

No reasons are given for arriving at this decision. Plaintiff's counsel (now the appellant) canvassed three grounds for the present appeal namely:

(i) the procedure adopted by the plaintiff was correct;

(ii) the objections and/or issues raised by the defendant (now the respondent) were res judicata;

(iii) the defendant's conduct was mala fide.

Question Of Procedure

The counsel for the appellant/plaintiff contended that the deputy registrar had erred in law when he held that he had no jurisdiction to fix a new auction date simply on the ground that the auction