Augustine Paul JCA:

On 26 July 2001, the appellants obtained an order of court against the respondents for a direction that the Register of Members of Lo Mu Sen & Sons Sdn Berhad ('the Register of Members') be rectified pursuant to s. 162 of the Companies Act 1965 by striking out the name of Loh Eng Wah therefrom as the holder of 161 shares of the said company numbered under share certificates 0050 to 0053 both inclusive. It must be observed that it did not specify the time within which the Register of Members must be rectified. The order of court was duly extracted and served on the respondents' solicitors on 15 October 2001. The respondents did not inform the appellants whether they have rectified the Register of Members as ordered. The appellants then realised that the order of court had been breached as the shares in question had been transferred to the second respondent on or about September 2002. This prompted the appellants to consider filing an application for leave to commence committal rjroceedings against the persons responsible for breaching the order of court. However, they realised that they were hampered by the absence of a penal notice in the order of court. Accordingly, they wrote to the deputy registrar of the court asking for the penal notice to be indorsed in the order of court. They were advised to apply formally to the court to have the indorsement. An ex partenotice of motion was then filed by the appellants asking for leave to indorse the penal notice in the order of court.

When the application came up for hearing before us on 7 August 2003, learned counsel for the appellants said that the deputy registrar ought to have indorsed the penal notice in the order of court. At this stage, learned counsel for the respondents, who was present, applied for an adjournment on the ground that the application ought to have been inter partesand that they should be heard before any order is made. Learned counsel for the appellants said that the application should properly be ex parteand that the order prayed for should be granted. With regard to the first observation made by learned counsel for the appellants, we were of the considered view that the deputy registrar acted properly in advising the appellants to obtain an order of court to enable him to indorse it with the penal notice as the draft stage of the order had passed. We agreed with learned counsel for the respondents that the application ought to have been inter partes. This is because the application is not one that involves the correction of a mere clerical mistake and the respondents must therefore be heard. Be that as it may, we felt that it may be appropriate to first determine whether the application had any merits before considering the request for adjournment.

It is true, as contended by learned counsel for the appellants, that a failure to indorse the order of court with a penal notice is fatal to an application for committal (seeLeow Seng Huat v. Low Mui Yein[1996] 2 BLJ 466; General (Rtd) Tan Sri Hashim Mohd Ali & Anor v. Francis a/l MG Mirandah[2000] MLJU 436; Gribbles Pathology (M) Sdn Bhd v. Adventist Hospital & Clinic Services (M) Bhd[2003] 1 CLJ 317). The Rules of the High Court 1980 ('the RHC') provide for the instances where an order of court can be indorsed with a penal notice pursuant to which an order of committal can be made. Reference is first made to O. 42 r. 6 of the RHC ('r. 6') which reads as follows:

(1) Subject to para. (2), a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time within which the act is to be done.

(2) Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any immovable property or deliver any movable property, a time within which the act is to be done need not be specified in the judgment or order by virtue of para. (1), but the foregoing provision