SHAHIZAN BIN HASNAN 1. ) NAHZATUL AIN BINTI MOHD KHALID 2. ) MUHAMMAD IQBAL BIN SAINY 3. ) MALANIA BINTI MATUYA PIHAK YANG DIGARNIS MAYBANK ISLAMIC BERHAD

SHAHIZAN BIN HASNAN 1. ) NAHZATUL AIN BINTI MOHD KHALID 2. ) MUHAMMAD IQBAL BIN SAINY 3. ) MALANIA BINTI MATUYA PIHAK YANG DIGARNIS MAYBANK ISLAMIC BERHAD

The impugned order was a mandatory order for specific performance directing the solicitors/partners to release the sale proceeds within a specified time and not a free-standing monetary judgment against the defendants' personal accounts; garnishment under O.49 was therefore an inappropriate mode of enforcement and the SAR correctly dismissed the garnishment application, which the appellate court upheld.

Citation
WA-37G-51-03/2022 (Mahkamah Tinggi)
Parties
Judgment Creditor / Plaintiff / Appellant: Shahizan bin Hasnan; Judgment Debtor / Defendant / Respondent: Nahzatul Ain binti Mohd Khalid; Judgment Debtor / Defendant / Respondent: Muhammad Iqbal bin Sainy; Judgment Debtor / Defendant / Respondent: Malania binti Matuya; Garnishee: Maybank Islamic Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
6 March 2023
Case Number
WA-37G-51-03/2022 (Mahkamah Tinggi)
Procedural Posture
Execution (garnishment) / Appeal (rehearing Under Order 56 Rules of Court 2012)
Outcome
Appeal dismissed; Senior Assistant Registrar's decision dated 05.09.2020 affirmed
Legal Topics
Garnishment, Specific Performance, Committal, Order to Show Cause, Service of Process, Without‑prejudice Negotiations
Source Language
Malay/English
Civil Procedure Enforcement of Judgment Contract (specific Performance) Banking Law Garnishment Specific Performance Committal Order to Show Cause +2 more

Case Brief

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Parties

Shahizan bin Hasnan

Judgment Creditor / Plaintiff / Appellant

Nahzatul Ain binti Mohd Khalid

Judgment Debtor / Defendant / Respondent

Muhammad Iqbal bin Sainy

Judgment Debtor / Defendant / Respondent

Malania binti Matuya

Judgment Debtor / Defendant / Respondent

Maybank Islamic Berhad

Garnishee

Procedural Posture

Execution (garnishment) / Appeal (rehearing Under Order 56 Rules of Court 2012)

Legal Issues

  1. 1 Whether the specific performance order constituted a monetary judgment enforceable by garnishment under O.49 RC 2012
  2. 2 Whether garnishment was an appropriate mode of enforcement vis-à-vis an order compelling solicitors to release sale proceeds
  3. 3 Whether procedural defects (short service of Order to Show Cause) vitiated the garnishment

Ratio Decidendi

The impugned order was a mandatory order for specific performance directing the solicitors/partners to release the sale proceeds within a specified time and not a free-standing monetary judgment against the defendants' personal accounts; garnishment under O.49 was therefore an inappropriate mode of enforcement and the SAR correctly dismissed the garnishment application, which the appellate court upheld.

Court Disposition

Appeal dismissed; Senior Assistant Registrar's decision dated 05.09.2020 affirmed

Orders

  • Dismissed enclosure 23 (appeal) with costs of RM3000 payable by the appellant within 14 days
  • Leave for respondents to pursue enforcement by appropriate modes under Order 45 Rules of Court 2012 as applicable