Chang Min Tat FJ:

This appeal is concerned with the jurisdiction of a Judge to alter, vary or set aside a judgment regularly obtained, drawn up and perfected.

The order in question was an order for sale made in a foreclosure proceeding. The originating summons was duly served on the chargor, together with copies of the charge and the notice of demand under s. 148 of the Land Code which were annexed to the affidavit in support as exhibits. The charge was to secure the repayment of a loan made to a firm known as the Tukang Firma Perabut dan Binaan and appeared to be executed by a Sahari as chargor before an advocate and solicitor practising at Miri. It is to be observed that the identity card number of the purported chargor was not recorded on the charge.

The respondent to the foreclosure proceeding filed an affidavit in which he denied that he executed the charge on the day claimed and asserted that he could not have done so since on that day he was out at sea on board a boat, heading towards Kota Kinabalu.

The respondent also averred that he had issued out a writ against the proprietor or partner of the firm and the chargee bank for a declaration that his land was freed from the charge and for consequential reliefs and damages.

This claim of non est factum and the charges of fraud and forgery in the counter affidavit of the respondent notwithstanding, the Judge after hearing Counsel for both parties made the order of sale on 13 June 1978. That order was then drawn up and perfected. It was not appealed against but shortly before the expiry of a month from the date of the order which was the period for lodging an appeal, the respondent made an application to set it aside and he also asked for leave to file an affidavit in opposition. The purpose of the last prayer is not easily understood. He had filed an earlier affidavit in opposition. It was as full as could be desired, except perhaps he did not exhibit copies of the various ships documents which would establish that he was not in Miri at the time when he was said to have executed the charge in Miri. However he did additionally allege a meeting with the attesting solicitor who confirmed, so it was alleged, that the respondent was not the person who executed the charge.

The summons to set aside the first order was set before the learned Judge on 26 September 1978. Counsel appeared for both parties. The various affidavits were read. The Judge made an order dismissing it. His reasons have not been stated anywhere. But the opposition to the second summons was not on the question of the Judge's jurisdiction but it was contended that the summons was not in compliance, presumably, with the rules. Whether the refusal of the Judge to set aside this order was on this procedural ground, it is not possible to say.

Then on 18 December 1979, this time by notice of motion, the respondent made another application to set aside the two previous orders on precisely the same grounds. Again affidavits and counter-affidavits were filed. On this occasion, however, the argument of Counsel for the respondent succeeded and the learned Judge set aside his own order.

He did not consider that he was functus officio. Nor that the application to set aside the order was made in the same proceedings and after the order had been drawn up. He did not appear to realise that the order was made on an inter partes application. He rejected the contention of Counsel for the chargee that the only way to set aside such an order was by a fresh action if, inter alia, grounded on fraud. He thought that since the matter had not been adjudicated and the Court had not pronounced a judgment upon the merits or by consent, he had the power to do what he did. He gave as his authority the case of Evans v. Bartlam [1937] AC 473 and he cited the oft-quoted dictum of Lord Atkin therein on a judgment obtained by a failure to follow any of the rules of procedure.

But though he himself observed that in this dictum Lord Atkin