Lai Kok Ming v Mok Shiau Ping (W-04(IM)(NCvC)-64-02/2025)

The appeal before us deals with the single issue of whether leave from the Court is required before a judgment creditor commences a garnishee proceeding to enforce a monetary judgment that was granted more than 6 years ago. More specifically, the legal question is whether garnishee proceedings under Order 49 of the Rules of Court 2012 (“ROC 2012”) are subject to the leave requirement applicable to writs of execution under Order 46 where six years or more have lapsed since the date of the judgment or order.

On 13.2.2012, the Appellant filed a writ of summons and a statement of claim against the Respondent in the Kuala Lumpur Sessions Court under Civil No. 52-4912-02/2012, seeking the payment of an outstanding balance sum of RM48,100.00 S/N gHGdTIvbFk2wakgk1gdHJw

On 7.11.2012, the Sessions Court ruled in favor of the Appellant, and made the following order: “…The Defendant shall pay the Plaintiff the sum of RM48,100.00 with interest at the rate of 4% per annum on the judgment amount, calculated from November 1, 2009, until full settlement, AND FURTHER ORDERED that the Defendant shall pay the Plaintiff RM4,659.00 in legal costs for this proceeding.”

The Respondent filed an appeal against the Session Court’s aforesaid order, however, the appeal was dismissed by the High Court. Notwithstanding the aforesaid, no steps were taken to enforce the judgment within 6 years from the judgment on 7.11.2012.

More than 11 years and 6 months later, the Appellant filed his garnishee proceedings against the Respondent on 7.5.2024 to enforce the judgment. The amount sought to be garnished by the Appellant against the Respondent had by then ballooned to

The Appellant did not obtain leave from the Court prior to commencing the garnishee proceedings. S/N gHGdTIvbFk2wakgk1gdHJw

The Respondent contended that such a failure is fatal and renders the garnishee proceedings defective in law. On 26.6.2024, the Sessions Court dismissed the Respondent’s contention. On appeal, the learned Judicial Commissioner allowed the appeal and set aside the garnishee order made.

The Appellant proffered as his grounds for not filing his application earlier the fact that he was not legally trained, that he had financial difficulties, and could not afford the legal fees to execute the judgment, having already incurred legal fees for the trial and appeal. The Appellant also contended that he was unaware of the procedural requirement or urgency of enforcing the judgment, and could only proceed with garnishee proceedings after 11 years, when his financial situation stabilized.

Having heard oral submissions from counsel and perusal of their respective written submissions, we are of the view that the learned Judicial Commissioner did not err when deciding that leave of Court must be obtained if a party wishes to file garnishee proceedings to enforce a judgment or order for the payment of money once more than 6 years have lapsed since the date of the judgment or order.

The Appellant relies heavily on the Supreme Court case in Tai Kwong Goldsmiths & Jewellers (Under Receivership) v Yap S/N gHGdTIvbFk2wakgk1gdHJw Kooi Hee & Ors [1995] 1 MLJ 1, wherein VC George SCJ had stated at p. 9 of the judgment at para [C] to [G] as follows: “The learned judge sought to find support for the view he had taken from the fact that O 46 r 2(1) of the Rules of High Court 1980 (‘the RHC’) sets out the instances in which a writ of execution may not issue without leave and by seeing some significance in that the rule ‘conspicuously and specifically omitted to include garnishee proceedings’. Order 46 deals with writs of execution, which are forms of written command in the name of the Chief Justice of the court concerned, to the sheriff of the court. Order 46 r 1 and the forms prescribed in respect thereof in the RHC show that in fact there are only four kinds of writs of execution provided for by the RHC, namely, writs of seizure and sale, of delivery, of possession, and of possession under O 89. In certain circumstances, in respect of those writs of execution, O 46 r 2(1) provides for leave to be obtained before the writ may issue. Order 46 r 2(1) does not purport to deal with the many situations in respect of which leave of the court is necessary before proceedings or some step in the proceedings may be commenced, but is restricted to circumstances in respect of only writs of execution where leave is required. Garnishee proceedings, which no doubt in a sense are a form of execution proceeding however, come under O 49 of the RHC and are initiated by an application made ex parte by summons and are not by way of a writ. They have no place in O 46. Accordingly, nothing turns on the S/N gHGdTIvbFk2wakgk1gdHJw omission to include garnishee proceedings in the list of cases set out in O 46 r 2(1).” [emphasis added]

With respect, the aforesaid passages do not at all establish the proposition as contended by the Appellant that no leave of Court is needed under O.46 r 2(1)(a) for garnishee proceedings that are filed 6 or more years after the date of the judgment or order.

If one were to read the preceding paragraphs to the above passages cited, it will immediately be obvious that the Supreme Court in Tai Kwong Goldsmiths & Jewellers (Under Receivership) v Yap Kooi Hee & Ors, was dealing with the correctness or otherwise of the proposition that no leave of court is necessary before an application can be filed against a court-appointed Receiver and Manager unless misconduct is alleged [See paras [A] to [C] at p. 9 of the judgment].

The Supreme Court found that the learned high court judge had found favour in the said proposition in reliance on O. 46 r 2(1), which sets out instances where leave is required before a writ of execution can be issued, and placed some significance in that the rule has ‘conspicuously and specifically omitted to include garnishee proceedings’.

In this regard, the Supreme Court quite rightly held that O. 46 r 2(1) does not deal at all with the issue as to whether leave is required in relation to an application to be made against a court-S/N gHGdTIvbFk2wakgk1gdHJw appointed Receiver and Manager. VC George SCJ made this clear when he stated that “Order 46 r 2(1) does not purport to deal with the many situations in respect of which leave of the court is necessary before proceedings or some step in the proceedings may be commenced, but is restricted to circumstances in respect of only writs of execution where leave is required”.

Similarly, the comment that garnishee proceedings “have no place in O 46” must be understood in the context of the distinction made by VC George SCJ regarding the differing procedural form between execution initiated by writs (in the case of possession, seizure and sale, and delivery) and execution applications initiated by summons in chamber (in the case of garnishee). In any case, the comment was a mere obiter as the issue before the Supreme Court was not whether leave was needed for the filing of the garnishee proceeding, but rather whether leave was needed because the Receiver and Manager were appointed by the Court.

Accordingly, with respect to learned counsel for the Appellant, we do not accept that the case of Tai Kwong Goldsmiths & Jewellers (Under Receivership) v Yap Kooi Hee & Ors supports his contention at all.

Returning to the issue of garnishee proceedings, which is, without any doubt, a form of execution proceeding, O. 45 r.1(1) provides: S/N gHGdTIvbFk2wakgk1gdHJw “1. Enforcement of judgment or order for payment of money (O.45 r.1)

Subject to the provisions of these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means:

a writ of seizure and sale;

garnishee proceeding;

…”

Significantly, O.45 r.13(1) also provides: “Rule 1(1), … and Orders 46 to 51 shall apply in relation to a judgment or order in relation to the recovery of money as they apply in relation to a judgment or order for the payment of money”.

We understand the aforesaid rule to mean that in respect of the enforcement of a judgment or order for the payment of money via garnishee proceedings, both O. 49, which governs specifically the procedure for garnishee proceedings, and O. 46, which governs all writ of execution proceedings, shall apply.

O. 46 r 2(1)(a) provides: “A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases: S/N gHGdTIvbFk2wakgk1gdHJw

where six years or more have lapsed since the date of the judgment or order;

… “

At first glance, O. 46 r 2(1)(a) appears limited to writ-based modes of execution in the form of writ of seizure and sale, writ of possession, and writ of delivery. This will exclude garnishee proceedings under O. 49, which are commenced by way of an ex parte application in chambers and not by writ. Garnishee proceedings operate as a process of attachment of debts and not seizure of property. They culminate in a garnishee order nisi at the ex parte stage and a garnishee order absolute at the inter parte stage. So doctrinally, it is not strictly a writ of execution.

However, we are of the view that “writ of execution” in O. should not be construed narrowly. In this regard, O. 46 r.1 provides that: “In this order, unless the context otherwise requires, “writ of executions” includes a writ of seizure and sale, a writ of possession and a writ of delivery”. [emphasis added]

The word “includes” in the definition necessarily means that the “writ of executions” is not confined only to “a writ of seizure and sale, a writ of possession, and a writ of delivery”. Indeed, the word “includes” suggests that the writs of possession, writs of seizure and sale, and writs of delivery are non-exclusive and S/N gHGdTIvbFk2wakgk1gdHJw that the “writ of executions” in fact covers non-writ execution proceedings as well.

The aforesaid, coupled with the clear purpose of O. 46 r 2(1)(a), namely, to prevent the enforcement of stale judgments without the court's supervision, means that the words “writ of executions” ought to be given a wider meaning to include all the mode of executions coming under O. 45 r 1(1) and O. 46 to 51 as expressly stipulated in O. 45 r 13(1). In other words, the “writ of executions” deals with all modes of execution of a judgment or order for the recovery or payment of money, regardless of procedural label.

To our mind, the 6-year rule to enforce a judgment or order for the payment of money without leave exists to prevent surprise enforcement of old judgments, and to avoid prejudice to debtors who may have reorganised their affairs, given the lapse of time.

If, as contended by the Appellant, leave is not required except for execution initiated by way of a writ, a creditor could bypass O. 46 r 2(1)(a) simply by choosing a garnishee proceeding (O. 49), or charging order (O. 50). This would defeat the rule entirely and permit procedural evasion, leading to an absurd and unacceptable result.

The Appellant’s technical counter-argument that O. 46 r 2(1)(a) ought to be textually limited to only pure writ execution proceedings, and since O. 49 contains no express leave S/N gHGdTIvbFk2wakgk1gdHJw requirement, this must mean that a garnishee proceeding falls outside the rule requiring leave, will run against the policy of stale enforcement.

Not only that, but it will also be inconsistent with the principle that all executions must be treated uniformly, a conclusion that can be drawn from the judgment of Lord Lloyd of Berwick of the

House of Lords in the case of Lowsley v Forbes [1999] 1 AC This was, in fact, a case where leave of the court was obtained under O. 46 r.2(1) (a) under the UK Rules of the Supreme Court to enforce a monetary judgment after more than 11 years had lapsed. The contention was that the enforcement was barred under section 24 (1) of the UK Limitation Act 1980.

All enforcement methods, namely, writs (e.g. seizure and sale), garnishee proceedings, and charging orders, are “execution”. These are not distinct legal rights, but procedural mechanisms. A judgment creditor enforcing a judgment is not suing again. He is simply invoking the court’s enforcement machinery.

Although not expressly directly, the House of Lords drew a distinction between actions on a judgment and the enforcement of judgment and treated execution as a single conceptual category, irrespective of the particular procedural mechanism employed, i.e., regardless of writ and non-writ execution. The reasoning of Lord Lloyd of Beswick makes it clear that limitation principles are not to be turned on procedural differences between modes of enforcement. Instead, the focus is on the S/N gHGdTIvbFk2wakgk1gdHJw substance of execution rather than the form. This is clear from the following passage by Lord Lloyd of Berwick at p. 340 of the judgment: “All forms of execution were to be removed from the sphere of limitation and instead made subject to a discretionary bar after six years. There would then be no need for the special limitation period of 12 years for bringing suit on a judgment.’ [emphasis added]

Indeed, to allow different time regimes to apply depending on the procedural form chosen will result in the law becoming arbitrary, and creditors can circumvent the restrictions simply by selecting a different mode.

In fact, the aforesaid considerations are the reasons why even bankruptcy proceedings, which are strictly speaking not “execution”, also require leave from the Court if a judgment creditor wishes to issue a bankruptcy notice after 6 years or more have lapsed since the date of the judgment in respect of the debt. More specifically, our Federal Court in Dr Shamsul Bahar Abdul Kadir v. RHB Bank Berhad [2015] 4 CLJ 561 & AmFraser Securities Pte Ltd v Poh Gaik Lye [2016] 4 MLJ 314, has held that bankruptcy proceedings require leave under O. 46 r 2(1)(a). S/N gHGdTIvbFk2wakgk1gdHJw

Thus, even though bankruptcy is not a mode of execution in the narrow, procedural sense, it is, in substance, an indirect and powerful method of enforcing a judgment debt.

If a more drastic “remedy” like bankruptcy proceedings requires leave, it will be irrational that the other execution processes like garnishee proceedings and charging orders do not require leave. This will not result in a coherent legal system.

For the above reasons, we hold that O. 46 r.2(1)(a) applies to all writ and non-writ execution proceedings, including garnishee proceedings under O. 49 of the ROC 2012.

For completeness, in CIMB Bank Berhad v. Azivest Sdn Bhd & Ors [2024] MLR 442; [2025] 9 MLJ 690, I have dealt with the relationship between section 6(3) of the Limitation Act 1953 and the procedural mechanism for leave to enforce a judgment under O. 46 r 2(1)(a) of the ROC 2012.

Section 6(3) of the Limitation Act 1953 is concerned with commencing a fresh action and does not regulate enforcement proceedings, which are governed exclusively by O. 46 r 2(1) of the ROC 2012, which imposes a requirement for leave after six years rather than an absolute bar. The two provisions operate in distinct fields and are not to be conflated. S/N gHGdTIvbFk2wakgk1gdHJw

Accordingly, we see no appealable error in the judgment of the learned Judicial Commissioner. We find no merit in the appeal and order that the appeal be dismissed.

Since the appeal was encouraged by the learned Judicial Commissioner with the view to clarifying the ambiguity in the law, and as learned counsel for the Appellant had informed the Court that he is acting pro bono, we make no order as to costs. DATE: 15 APRIL 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL S/N gHGdTIvbFk2wakgk1gdHJw For the Appellant : Lai Zhe Jun (Messrs Jun Chambers) For the Respondent : Eolanda Yeo Jin Huay (Messrs Cheang & Ariff) For the Garnishee : Eunice Aw Shze Xian (Messrs Kee Sern, Siu & Huey) S/N gHGdTIvbFk2wakgk1gdHJw