Order 45 Rule 11 allows for stay of execution only upon new matters since judgment that would alter the decision; mere initiation of new claims does not fulfill this requirement.

JUDGMENT

[1] This is my JUDGMENT in respect of the 4^th defendant seeking stay of execution pursuant to Order 45 Rule 11 of the Rules of the High 1980 which reads as follows:

"Without prejudice to Order 27, rule 1 , a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit."

[2] The parties have relied on the following cases: Re Ong Thim Kuang, Ex P Public Bank Bhd (No 2), [2000] 7 CLJ 349 ; Serangoon Garden Estate Ltd v. Ang Keng ; Caucasia Sdn Bhd v. Malaysia National Insurance Berhad & Anor[2009] 8 MLRH 642 (unreported, suit no. D6-22-1675-2000, judgment dated 19.3.2009, Kuala Lumpur High Court) ; Mehamud Nyak Ahmad & Anor v. Tufail Ahmad Alarakha & Ors; [2008] 9 CLJ 140 ; Leong Poh Shee v. Ng Kat Chong ; Asia Commercial Finance (M) Bhd v. Kaline Holdings Sdn Bhd & Ors And Third Parties; ; Yogananthy a/p AS Thambaiya v. Idris Bin Osman [2002] 6 MLRH 156 (unreported, suit no. 22-160-1995 (1), judgment dated 13.3.2002, Kuala Lumpur High Court) ; Jaya Harta Realty Sdn Bhd .v Koperasi Kemajuan Pekerja-Pekerja Ladang Bhd; Tetuan Isharidah, Ho, Chong & Menon (Garnishee); [2000] 6 MLJ 493 ; [2000] 3 CLJ 361 ; [2000] 3 AMR 3693 ; Leong Poh Shee v. Ng Kat Chong ; Government of Malaysia v. Datuk Haji Kadir Mohamad Mastan and Another Application ; ; Walter a/l Pathrose Gomez & Ors v. Sentul Raya Sdn Bhd; [2005] 7 CLJ 385 ; [2005] 6 MLJ 555 ; Low Nam Hui & Sons Sdn Bhd v. Huang Yan Teo; [2007] 6 CLJ 27 ; [2007] 7 MLJ 13 ; Linotype-Hell Finance Ltd v. Baker [1992] CA 887; Malayan Banking Bhd v. Ya'kup Oje & Anor; [2007] 6 MLJ 389; [2007] 5 CLJ 311 .

Brief Facts

[3] The plaintiff had obtained judgment against the 4^th defendant who was a guarantor. It is the contention of the 4^th defendant that one person by the name of Lee Yau Haung (Lee) was obliged to indemnify the 4^th defendant. The 4^th defendant had in actual fact brought a 3^rd party proceedings in the instant suit against Lee but the 3^rd party proceeding was dismissed for want of prosecution. Subsequently the 4^th defendant has filed a fresh suit against Lee and says this entitles the 4^th defendant to seek a stay of execution under Order 45 Rule 11.

[4] It is the contention of the plaintiff that the 3^rd party proceedings and/or the fresh suit by the 4^th defendant against Lee have no connection to the plaintiff's claim and in consequence Order 45 Rule 11 is not applicable.

[5] I have read the application, affidavits and submission of the parties in detail. After having given much consideration to the submission of the learned counsel for the 4^th defendant, I take the view that the application must be dismissed. My reasons inter alia are as follows:

(a) In the instant case the 4^th defendant is not seeking a stay of execution pending appeal as no appeal is pending but pursuant to Order 45 Rule 11, for stay of execution.

(b) Order 45 Rule 11 does not give wide discretion to Court to entertain an application for stay of execution unless the applicant can demonstrate to the Court that he falls within the ambit of the said provision. In dealing with a similar provision the Singapore Court in the case of Sal Leasing (Pte) Ltd v. Hendmaylex Pte Ltd & Ors , has given a very restrictive interpretation of the said provision. The Court has held the matters that are referred to in the provision are matters which would or might have prevented the order being made or would or might have led to a stay of execution if they had already occurred at the date of the order. Thean J observed:

"Clearly, in terms of Order 45 Rule 11 the Cour