52-372-12/2011 (Mahkamah Sesyen)

52-372-12/2011 (Mahkamah Sesyen)

The plaintiff failed to discharge the burden of showing sufficient and reasonable cause for the inordinate delay (over four years after the six‑year enforcement period, and over ten years since judgment) in seeking leave under Order 46 r.3; absence of material explanation and failure to take enforcement steps justified refusal of leave to execute the judgment against the guarantor.

Citation
52-372-12/2011 (Mahkamah Sesyen)
Parties
Plaintiff / Perayu: Bank Pertanian Malaysia Berhad; Defendant 1 (peminjam): Abd Rashid bin Abdul Rahman; Defendant 2 (penjamin): Mohd Marzuki bin Maslan
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
30 June 2022
Case Number
52-372-12/2011 (Mahkamah Sesyen)
Procedural Posture
Application for Leave to Issue Writ of Execution Under Order 46 R.3 Rules of Court 2012 (kkm 2012) / Judgment on Application (chamber/ruling)
Outcome
Application dismissed; leave to execute refused
Legal Topics
Order 46 R.3 KKM 2012, Limitation Act 1953 S.6, Leave to Execute After Six Years, Sufficient Cause for Delay, Guarantee Liability
Source Language
Malay/English
Civil Procedure Execution of Judgment Banking and Guarantees Insolvency Order 46 R.3 KKM 2012 Limitation Act 1953 S.6 Leave to Execute After Six Years Sufficient Cause for Delay +1 more

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Parties

Bank Pertanian Malaysia Berhad

Plaintiff / Perayu

Abd Rashid bin Abdul Rahman

Defendant 1 (peminjam)

Mohd Marzuki bin Maslan

Defendant 2 (penjamin)

Procedural Posture

Application for Leave to Issue Writ of Execution Under Order 46 R.3 Rules of Court 2012 (kkm 2012) / Judgment on Application (chamber/ruling)

Legal Issues

  1. 1 Whether leave under Order 46 r.3 should be granted to execute a judgment more than six years after judgment date
  2. 2 Whether the plaintiff furnished sufficient and reasonable explanation for the delay in seeking leave
  3. 3 Whether the guarantor (Defendant 2) can be held liable for the increased debt following the principal's insolvency

Ratio Decidendi

The plaintiff failed to discharge the burden of showing sufficient and reasonable cause for the inordinate delay (over four years after the six‑year enforcement period, and over ten years since judgment) in seeking leave under Order 46 r.3; absence of material explanation and failure to take enforcement steps justified refusal of leave to execute the judgment against the guarantor.

Court Disposition

Application dismissed; leave to execute refused

Orders

  • Leave under Order 46 r.3 KKM 2012 to issue writ of execution against Defendant 2 is refused
  • Application for leave dismissed