Tee Ah Sing JC:

In this appeal the respondents had filed notice of application for the following order:

1) the Judgment dated 7 December 1993 entered against the respondents be set aside pursuant to o 28 r. 8(1) of the Subordinate Courts Rules 1980 and that the respondents be at liberty to file a statement of defence within fourteen (14) days from the date of the order thereof.

2) the writ of seizure and sale dated 29 December 1992 be stayed forthwith persuant to O. 32 r. 1(1).

This application was supported by the affidavit of Lim Ee Lock affirmed on 7 January 1994, a supplementary affidavit of Lim Ee Lock affirmed on 11 April 1994, and affidavit-in-reply of Chu Tung Guan @ Chow Tung Yeen affirmed on 24 January 1994.

The appellant filed an affidavit-in-oposition by Mohd.Afsar Yunus affirmed on 19 January 1994, suplementary affidavit of Zunaidi bin Matsuali affirmed on 19 January 1994, and further affidavit of Charles Michael Decena @ Charles affirmed on 19 January 1994 to oppose the application.

The grounds of appeal as stated in the memorandum of appeal are as follows:

1.1 The learned sessions Court Judge erred in law when she held that the respondents' filing of their application in contravention of O. 28 r. 8 read together with o 29 r. 14 of the Subordinate Courts Rules, 1980 did not amount to an irregularity.

1.2 The learned sessions Court Judge erred in law when she on her own volition extended the time for filing the respondents' application despite the fact that the respondents did not make any application, formal or otherwise, to extend the time for making the said application.

1.3 The learned sessions Court Judge erred in law in extending the time for making the respondents' application when she had jurisdiction under any written law or under the Rules to do so in the absence of any application for extension of time before the Court by the respondents.

2. The learned sessions Court Judge erred in law and in fact when she failed or refused to adjudicate upon the appellant's following preliminary objections:

(a) that the respondents' affidavits are inadmissible by reasons of the deponent's failure to comply with o 25 r. 26(1) and (2) of the Subordinate Courts Rules, 1980 :

(b) that the respondents' application undero 32 r. 1(1) of the Subordinate Courts Rules, 1980 had failed to comply with the provisions of the aforesaid o 32 r. 1(3) .

3.1 The learned sessions Court Judge erred in law and in fact when she held that the appellant could not maintain his action by virtue of s 38 of the Bankruptcy Act, 1967 .

3.2 The learned sessions Court Judge erred in law and in fact when she failed to take into consideration the official assignee's letter dated 18 January 1994 which categorically stated that the appellant was entitled to proceed with the action without the previous sanction of the official assignee.

3.3 The learned sessions Court Judge erred in law and in fact in holding that the appellant did not come within the exception provided under s 38(1)(a) of the Bankruptcy Act, 1967 .

4. The learned sessions Court Judge erred in law and in fact in allowing the respondents' application.

5. The learned sessions Court Judge erred in law and in fact in arriving at her decision and has disregarded and failed to consider the import and purpose of the various authorities cited to her and in the circumstances, the learned sessions Court Judge's decision dated 8 February 1994 is wrong in law and in fact and contrary to authority and should therefore be set aside.

I shall deal with the main grounds of appeal first, i.e., grounds 3 in the petition of appeal.The respondents has raised the issue that the appellant was an undischarged bankrupt.By virtue of s 38(1)(a) of the Bankruptcy Act 1967 the appellant was incompetent to maintain the action without the previous sanction of the official assignee.

On the other hand learned Counsel for the appellant submitted that the cause of action comes within the exception pro