JUDGMENTBY: GOOD JA

with whom Hill J.A. and Hepworth J. agreed): This is an appeal from an order of Barakbah J. on an application by way of summons-in-chambers to vary an order of the First Division of the High Court of Kedah made on the 17th February, 1940, which application was allowed by the learned Judge.

The present respondent was the plaintiff in a Civil Suit filed in the Magistrates Court in Alor Star in 1938 against two defendants of whom the second defendant is the present appellant.

The learned Magistrate in a judgment delivered on the 12th July, 1939, found:--

(1) that the respondent had bought a piece of land from the first

defendant twelve years previously and had paid for it and had

gone into occupation of it and continued in occupation until the

date of the judgment;

(2) that after the respondent had bought and paid for the land the

first defendant had sold it to the present appellant, although

the appellant knew that the land had already been bought by the

respondent.

On these findings of fact the learned Magistrate ordered the appellant to transfer the land to the respondent.

The appellant appealed to the Second Division of the High Court and his appeal was dismissed. He then appealed to the First Division of the High Court and this appeal was also dismissed.

The appellant, however, took no steps to transfer the land to the respondent in obedience to the order of the learned Magistrate as upheld by the final appellate Court. The order of the learned Magistrate contained no provision for compelling the appellant to transfer the land or for enabling it to be transferred if the appellant refused or neglected to transfer it. The order of the appellate Court made no reference to how effect was to be given to the Magistrates order; it simply upheld the Magistrates order as it stood.

The respondent took no steps to execute his judgment until the 5th January, 1959, when he made an application to the Alor Star Magistrate for an order calling upon the appellant to show cause why he should not be compelled to execute a transfer of the land in the respondents favour. This application was dismissed by the Magistrate on the 13th January, 1959, on the ground that it was statute-barred. The respondent did not appeal from the Magistrates decision but, instead, took the course of making an application to the High Court by summons-in-chambers dated the 11th February, 1959, for an order varying the order of the First Division of the High Court dated the 17th February, 1940, by the addition of the following words:--

"And the Court doth further order that the 2nd defendant/appellant do

transfer the land comprised in Surat Akuan No. 331/51 situate in the

Mukim of Tualang, District of Kota Star to the plaintiff/respondent and

in default whereof the Assistant Registrar of this Honourable Court be

and is hereby empowered to sign the Memorandum of Transfer on behalf of

the 2nd defendant/appellant".

The addition was, of course, designed to enforce the order of the Alor Star Magistrate of the 12th July, 1939.

The learned Judge to whom the application was made took the view that this was a case for the exercise of the inherent power of the Court to vary its own order so as to carry out its meaning or to make its meaning plain. He made an order in terms allowing the application of the present respondent and it is against that order that this appeal is brought.

I do not think it necessary to examine in detail the question of the Magistrates jurisdiction to try a suit for specific performance in 1939. I am satisfied that Magistrates in Kedah had jurisdiction at that time, subject to a limitation as to the value of the subject-matter which was not exceeded in the present case.

The Courts in Kedah, which were established under the Kedah Courts Enactment (Enactment No. 25) in 1920 were abolished with the repeal of the Enac