Mohd Eusoff Chin SCJ:

[1] This appeal raises a short but important point. At the conclusion of arguments, we allowed the appeal and ordered a re-trial. We now give our reasons for doing so.

Facts

[2] The facts so far as are relevant to this appeal are as follows:

[3] The appellant had charged certain lands to the respondent in circumstances which we do not propose to elaborate in view of the order for re-trial we have made. Those circumstances sufficiently appear in the judgment of the learned trial Judge.

[4] By two originating summonses (which, for convenience, we will refer to in this judgment as "the foreclosure proceedings") taken out by the respondent (as Chargee/Plaintiff) against the appellant (as Chargor/ Defendant) the respondent applied for orders for sale of the appellant's lands. The applications were made pursuant to the provisions of s 256 of the National Land Code, 1965 (hereinafter, "the Code"). Orders for sale were granted by the Court. The appellant had unsuccessfully applied to set aside one of these orders for sale and had with equal lack of success resisted the making of the other order.

[5] Having failed, the appellant, on 23 November 1989, took out the wri