PRAGASH A/L SAVARIMUTHU v KAVITA A/P NADARAJAN

Case Significance

Confirms that a Prohibitory Order registered before service on the debtor and chargee is a material irregularity contrary to Order 47 rule 6 and section 334 of the National Land Code, justifying the setting aside of the order and the ex parte leave to enforce.

This High Court decision at Johor Bahru concerns an application to set aside an ex parte order, made under Order 42 rule 13 and Order 92 rule 4 of the Rules of Court 2012. By the ex parte order, the Court had granted the plaintiff leave to enforce a Sessions Court judgment by way of a Prohibitory Order under Order 47 rule 6 of the Rules of Court 2012 and sections 5, 324 and 334 of the National Land Code 1965 against a parcel of land, and a Prohibitory Order had duly been registered at the Land Office. The defendant applied to set aside both the ex parte order and the registration of the Prohibitory Order, contending that the judgment had not been properly served — service on her former solicitors being invalid and there having been no personal or registered-post service — that the affidavit of service was unreliable, that the Prohibitory Order had been registered prematurely before any service and without notice to the chargee bank, and that the time for applying under Order 42 rule 13 had accordingly not been triggered, so that her application was within time. The Court distinguished authority holding that procedural irregularities alone will not justify discharging a regularly obtained Prohibitory Order, noting that in that case the debtor had full notice and had participated in the proceedings. Here, by contrast, the Prohibitory Order had been registered before any service on the defendant or the chargee, which was inconsistent with Order 47 rule 6(d) and section 334(1) of the National Land Code, provisions that presuppose service before registration. The premature registration had deprived the defendant of the opportunity to challenge the order and had encumbered her property without notice, a material irregularity for which the judgment creditor, seeking to restrict proprietary rights, was responsible. The Court set aside the ex parte order and the Prohibitory Order and awarded costs of RM8,000.