JUDGMENT

1. This is an application by the plaintiff, inter alia, for an order that the defendant's right title share and interest in the two parcels of land together with the building thereon and appurtenances thereof situate at Padungan, Kuching, containing an area of 242.8 and 485.6 square metres, more or less, and described as Lots 82 and 83 Section 50 Kuching Town Land District respectively be sold by public auction or tender or such other mode of sale as may be directed by the court under section 148(2)(c) of the Land Code (Cap 81).

2. Section 148 of the Land Code provides:-

"148.(1) If default be made in the payment of the principal sum, interest or other moneys secured by a charge, or in the observance of any agreement, expressed or implied in any charge, the chargee may give to the chargor, his personal representatives or assigns, notice in writing that the chargee will resort to all available remedies unless such default be remedied. [2]

(2) If the chargor fails to comply with the requirements of any notice lawfully given, the chargee shall be at liberty to apply to the High Court -

(a) ;for an order entitling him to enter into possession and to be registered as proprietor of the charged land;

(b) ;to receive the rents and profits of the charged land; or

(c) ;for the sale of the charged land,

and the Court after hearing the evidence may make such order as in the circumstances seems just."

3. Before the abovesaid application could be heard, learned counsel for the defendant raised a preliminary objection in that when this Originating Summons was taken out by the plaintiff, order 83 rules 3(2), 3(3), 3(6) and 3(7) of the Rules of the High Court, 1980 were not complied with. The relevant parts of order 83 read as follows:-

"3.(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.

(2) The affidavit must exhibit a true copy of the charge and the original charge or, in the case of a registered charge, the charge certificate must be produced at the hearing of the summons.

(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession rises and, except where the Court in any case or class otherwise directs, the state of the account between the chargor and chargee with particulars of -

(a) ;the amount of the advance;

(b) ;the amount of the repayments;

(c) ;the amount of any interest or instalments in arrear at the date of issue of the originating summons and at the date of the affidavit; and

(d) ;the amount remaining due under the charge.

(4) ....................

(5) ....................

(6) Where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3). [3]

(7) Where the plaintiff's claim includes a claim for interest to judgment, the affidavit must state the amount of a day's interest."

4. As the first ground of the preliminary objection, learned counsel for the defendant submitted that in taking out the Originating Summons dated 4.7.1997, the plaintiff failed to annex a true copy of the charge and original charge to the Affidavit of David Leong Yun Kong affirmed on 1.7.1997 contrary to order 83 rule 3(2). Looking at the said Affidavit filed in support of the Originating Summons, it could be clearly seen from the exhibits annexed thereto and marked as "D-1" and "D-2" respectively that there is no merit to the submission of the learned counsel on this point.

5. More pertinent, however, is the objection that the Affidavit of David Leong Yun Kong failed to state the amount of principal sum owing, the interest accrued and calculated up to the date of