Nik Hashim JCA:

Facts

The respondent bank granted the appellant a housing loan in the sum of RM80,000, secured by a charge dated 2 August 1983, and executed by the appellant in favour of the respondent over a piece of land held under a Land Office Title, namely H.S. (M) 5933, Lot No. 435, Mukim Petaling Wilayah Persekutuan (the land).

By reason of the appellant's default in servicing the said loan a Form 16D was issued by the respondent to the appellant on 6 November 1985. The appellant failed to comply with the same. Thereafter, the respondent applied to the land office for an order for sale under s. 260 of the National Land Code 1965(the Code). After carrying out an enquiry on 24 May 1989, the Land Administrator granted an order for sale on the same day (the 1st order for sale). No challenge was made by the appellant against the 1st order for sale.

Thereafter two public auctions were conducted on 26 October 1989 and 27 July 1990 respectively. Both auctions were unsuccessful. Consequently on 1 March 1994 a certificate of reference under s. 265(3)(b) of the Codewas issued to the High Court by the Land Administrator.

Hence, the respondent filed the originating summons dated 13 March 2000 in the High Court for substitution of the order for sale by the land office. On 14 June 2001, the High Court granted order in terms of the originating summons (the 2nd order for sale). The appellant appealed against the 2nd order for sale but later withdrew the appeal.

Subsequently, an application to set aside the 2nd order for sale of the High Court was filed by the appellant on 11 October 2001 (the application). The application was dismissed by the learned High Court judge on 10 May 2002.

The appeal before this court is against the decision of the learned High Court judge in dismissing the application.

Appeal

Essentially, the appellant's complaints are that the order and the originating summons are defective, null and void for non-compliance with the relevant provisions and requirements of the Code, the charge instrument registered on 2 August 1983, O. 83 of the Rules of the High Court 1980(the RHC) and the law.

It is to be noted that the land is held under a Land Office Title. The provisions applicable to the sale of such land are set out in ss. 260to 265 of the Code. These provisions have been complied with in this case and accordingly the 1st order for sale was made by the Land Administrator on 24 May 1989. Subsequently, two public auctions were held but both were unsuccessful.

Section 265(3)

Section 265(3) of the Codeprovides that in the event of two unsuccessful auctions the land shall be withdrawn from sale and the Land Administrator shall refer the matter to the High Court which court may substitute the order of the Land Administrator with an order for sale under s. 256 of the Code. By its terms, it is clear that s. 265(3)cannot be construed as requiring the High Court to treat the originating summons as a fresh application for an order for sale of land held under registry title requiring compliance by the respondent with the provisions applicable thereto. Section 265(3) merely confers on the High Court the power to substitute the 1st order for sale under s. 256. In this regard, we were referred to the case of Arab Malaysia Finance Bhd v. Shamsuddin Ahmad & Anor[1997] 4 CLJ Supp 469where at p. 476 Hishamudin Yunus J said:

It, therefore, follows that the reference to s. 256, in sub-s. 3(c) of s. 265, cannot be construed as the imposition of a duty or the conferment of a right on the chargee to make a fresh application for sale under s. 256; neither can the chargor be permitted to treat the reference as such ...

That case was followed by Alauddin J (as he then was) in Bank Islam Malaysia Bhd v. Shamsuddin Hj Ahmad; [1999] 450 MLJU 1 where his Lordship said:

Sungguhpun s. 256 di sebut didalam subklausa (c) (s. 265(3)) ini tidak bermakna bahawa ianya boleh dianggap bahawa permohonan plaintif di buat dibawah seksyen tersebut.

We ag