Raja Azlan Shah J:

This is an application by way of summons-in-chambers for an order that the applicant/chargee may be at liberty to discontinue this action which they had started by way of originating summons (OSNo. 374/69).

The undisputed facts of the case are as follows:- The respondent/chargor borrowed a sum of $15,000 at an interest of 120er annum from the applicant/ chargee, the Overseas Union Finance Ltd a licensed moneylender. Repayment of the loan was on demand but until demand the respondent/chargor is to pay the principal sum at a monthly instalment of $346.50. To secure the repayment of the loan the respondent/ chargor charged his land at No. 14-C, Jalan Raja Laut, Kuala Lumpur to the applicant/chargee. The charge was duly registered under presentationNo. 374 vol CXCVI, Folio 142.

A memorandum of agreement for the loan was drawn up pursuant to s. 16 of the Moneylenders Ordinance, 1951 and signed by the parties on 21 January 1969. A memorandum of charge was also drawn up and signed by the parties on the same day.

On 19 August 1969 the applicant/chargee delivered a statutory notice of default under Form 16D of the National Land Code to the respondent/ chargor reminding him that he has failed to pay the total sum of $1,386 being the sum for four (4) monthly instalments and that if he fails to remedy the breach within the time stipulated they (the applicant/chargee) will proceed to apply for an order for sale.

This notice was not complied with. On the 3 December 1969 the applicant/ chargee filed an application by originating summons for an order that the said land be sold by public auction under the National Land Code to satisfy the total sum due to the chargee at the date of the order with interest on the principal sum due at 120er annum till the time of sale which is to be specified. In his affidavit dated 15 February 1970 the respondent/ chargor opposed this application on three grounds:227 (1) That the contract was unenforceable as the memorandum of agreement did not comply with s. 16 of the Moneylenders Ordinance, 1951 in that the date of the loan was not correctly stated and the terms of the loan were not correctly set out. (2) That the charge was void because being an executor-cum- trustee he did not have power either under the will or the Trustee Ordinance, 1949 to charge the land, (3) The notice of default was in the wrong form and therefore not an effective notice. He contends that it should be in Form 16E under s. 255 and not Form 16D under s. 254.

After receiving the respondent/chargor's affidavit the applicant/chargee sought to discontinue the action on the ground that even if the Court were to grant an order for sale they, the applicant, would find difficulty in selling the property it being a residence and in an area where the value has fallen. Again this application was opposed by the respondent/chargor on the grounds that an originating summons cannot be discontinued and that the applicant/chargee knowing that they could not get the order for sale now tries to get an illegal charge on the land by discontinuing the action.

I shall first consider the application for discontinuance. The respondent/chargor contends that an originating summons cannot be discontinued. The rules for discontinuance are contained in O. 26 of the Rules of the Supreme Court, 1957. Under r. 1 of the Order a plaintiff may discontinue an action by notice in writing before defence or after defence before taking any other proceeding in the action. At any later stage, leave to discontinue must be obtained. In Mallal's Supreme Court Practice at p. 324 the learned author states that the Order does not apply to an originating summons. As authority he cites the unreported case of Tan Hood Keng v. Arunasalam Chetty OSNo. 38 of 1909 (unreported) which followed Re Dyson's Trade Mark (1891) 65 LT 488. With due respect to the learned author I do not think this is the correct statement of the rule. "Action" under 0.71 r. 1 sub-r (