JUDGMENT

Raja Azlan Shah J:

This is a motion by the defendant for stay of execution for a period of three years of the judgment of Abdul Aziz J given on 23 August 1965; in the alternative, to set aside that judgment and that the defendant be permitted to defend the suit.

The defendant is a registered proprietor of the land held under Certificate of Title No. 15123 Lot 96 s. 48 in the town and district of Kuala Lumpur containing an area of approximately 254,553 square feet. By virtue of an agreement dated 8 January 1958 made between the plaintiff and the defendant, it was agreed that the defendant should sell and the plaintiff should purchase for the sum of $7700 a portion of the said land approximately 3,600 square feet together with the house erected thereon bearing No. 2K, Jalan Kolam Ayer.

In compliance with that agreement, the plaintiff has paid a deposit of $6000 in respect of the purchase price on the date of the agreement, and it was agreed that the balance of $1,700 shall be paid by the plaintiff to the defendant when the latter is ready to deliver the document of title of the said portion of land. On or about 12 August 1964 the plaintiff, at the request of the defendant, paid the balance of $1700 and a receipt was given. The defendant, having received the full purchase price, has neglected and refused and continues to neglect and refuse to transfer the said portion of land to the plaintiff. On 5 March 1965 the plaintiff issued a writ against the defendant praying for transfer of the said land and in default of his doing so the Senior Assistant Registrar, High Court, Kuala Lumpur, to execute such transfer in favour of the plaintiff.

On 12 July 1965 the plaintiff took out a summons in chambers for leave to sign final judgment against the defendant. He swore an affidavit dated 3 July 1965 in which he stated that the writ has been duly served on the defendant on or about 27 May 1965, but that the defendant did not enter an appearance. The case came for trial before Abdul Aziz J on 16 August 1965. Both their Counsel appeared, and by consent it was adjourned to 23 August 1965 on which date judgment by default was given in favour of the plaintiff as claimed. It is against that order that the defendant now applies for stay of execution, in the alternative, to set it aside with liberty to defend the suit.

Although the Court has an unqualified discretion to grant a stay it has never been the practice to do so unless it is supported by an affidavit of special circumstances. The law on the point is well settled. I quote a passage from Halsbury's Laws of England, 3 Edn., Vol. 16, para. 51 at p. 35:

The Court has an absolute and unfettered discretion as to the granting or refusing a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant it if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing.

I would also adopt a passage in Mallal's Supreme Court Practice" at p. 573 where the learned author said:

A stay will not be allowed unless there are special circumstances.

The substantial question now to be posed, as I see it, is whether the allegation that the land office might take three years to sub-divide the land in question affords special circumstances for a stay. Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common. For the land office to sub-divide a piece of land is common or usual. For it to do so for a period of one, two or three years is usual or common. It is nothing distinctive or out of the way and therefore, to my mind, that by itself does not constitute special circumstances to persuade the Court to stay the execution.

Coming to the second limb of the defendant's prayer, it is settled law that in order to set aside a judg