MALAYSIA-A RESTATEMENT OF EXISTING LAWS-WINDING-UP PROCEEDINGS IS NOT AN EXECUTION PROCEEDING


In the Court of Appeal case of JUARA ASPIRASI (M) SDN BHD v TAN SOON PING [2011] MLJU 765, it was held that:-

"...It was also argued before the High Court, and on appeal before us, that when the Winding-Up Petition was filed there was an ad interim stay of the order in place. This ad interim order of 14.11.2005 however had not been held out and disclosed as an exhibit by the Company.
On this issue we are of the view that the learned High Court was right in ruling that, even if there was an ad interim order in place, there was no legal impediment for the Petitioner to file a Winding-Up Petition against the Company. An ad interim stay does not mean that a Winding-Up Petition cannot be filed as bankruptcy and Winding-Up proceedings was not within the ambit and meaning of "execution" proceedings as provided by Order 46 r.1 of the Rules of High Court 1980 which states as follows:
"In this Order, unless the context otherwise requires, 'writ of execution' includes a writ of seizure and sale, a writ of possession and a writ of delivery."

In Perwira Affin Bank Bhd v. Lim Ah Hee @ Sim Ah Hee [2004] 3 MLJ 253 @ 265 Abdul Hamid Mohamad FCJ (as he then was) in delivering the decision of the Federal Court held that a bankruptcy proceeding is not a writ of execution, which was a continuation of the existing proceeding to enforce the judgment provided by the same rules of Court, i.e. the Rules of the High Court. Bankruptcy proceedings are provided by separate law and rules, the focus being the judgment debtor, not the debt, and the object being to appoint a receiver in the person of the Official Assignee over the assets of the debtor and to convert the status of the debtor into a bankrupt with the loss of control over his properties to the Official Assignee. The fact that it is based on a judgment does not necessarily make it a continuation of the existing proceedings. It is a proceeding by way of petition just like divorce, Winding-Up or election to name a few, bears the characteristics of a fresh proceeding unlike an execution proceeding. This principle is equally applicable to Winding-Up proceedings.
In Re A Company [1915] 1 Ch 520, the question before the Court of Appeal was whether the execution on a judgment included the petition of Winding-Up of a company. Lord Cozens-Hardy MR said at p 525:
".... Now 'execution on the judgment' is a technical term. It is a legal process by which the judgment creditor, in that character and for his sole benefit, by a proceeding in the same action seeks to satisfy his judgment wholly or partially. I think it is plain that a winding-up petition is not execution on a judgment. It lacks almost every element of such an execution."..."

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