JUDGMENT

Moh Kok Wai:

Introduction

[1] This appeal concerns the Magistrates' Court 's decision made on 15 April 2024 following a judgment debtor summons issued against the appellant/judgment debtor on 26 December 2023, at the instance of the respondent/judgment creditor. The central question which falls for determination by this Court is whether the learned magistrate, in the exercise of her discretion, did err in point of law by undertaking the examination of the director of the judgment debtor company without first obtaining an order pursuant to the provisions of O 48 of the Rules of 2012.

Background Facts

[2] The Judgment Debtor is a company engaged in event management consultation services. The Judgment Creditor is a company specializing in provision of leasing, rental and servicing of xerographic copiers, duplicators and office equipment.

[3] On 7 June 2023, the judgment creditor obtained a judgment in default of appearance against the judgment debtor for RM14,560.78, including interests and costs of RM806.00.

[4] To enforce this judgment, the judgment creditor obtained a garnishee order on 6 October 2023 recovering RM408.69. Pursuant to the outstanding balance in the judgment, the judgment creditor applied for a judgment debtor summons.

[5] On 26 December 2023, upon the request made by the judgment creditor, the Magistrate's Court issued a judgment debtor summons against the judgment debtor addressed to its director, Rajiv Anand Bhanot.

[6] At the hearing of the judgment debtor summons on 12 March 2024 and 15 March 2024, Jonathan Anthony Koshy, another director of the judgment debtor, appeared. The learned magistrate examined him regarding the judgment debtor's ability to pay and subsequently ordered the judgment debtor to pay RM800.00 monthly from May 2024 toward the outstanding balance of RM16,296.51.

The Judgment Debtor's Main Contention

[7] The Judgment Debtor argues that the learned magistrate erred by examining its director without first obtaining an order for examination under O 48 r 1 of the Rules. This provision requires:

(2) Where a person has obtained a judgment or order for the payment of money by some other person (who is referred to as "the judgment debtor" in this Order), the Court may, on an application made ex parte by a notice of application supported by an affidavit in Form 95 by the person entitled to enforce the judgment or order, order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar, and be orally examined on the questions:

(a) whether any and, if so, what debts are owing to the judgment debtor; and

(b) whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order,

and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination.

(3) An order under this rule shall be in Form 96 and must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.

[Emphasis Is Mine]

[8] The judgment debtor contends that the judgment creditor failed to apply for an examination order under O 48 r 1(2) and failed to obtain and serve such order before the examination was carried out by the learned magistrate. Consequently, the judgment debtor argues the examination and subsequent instalment order made by the learned magistrate were unlawful for being in contravention of O 48 r 1(2) and r 1(3).

[9] It is unclear whether the learned magistrate conducted the examination of the judgment debtor under O 48 or s 4 of the Act; both provisions were referenced in her grounds of judgment.

[10] The critical question is whether the examination should have been conducted under O 48 or under the Debtors Act 1957 by virtue of O 74. This distinction is not merely one of procedural nicety, but goes to the very juris