PROHIBITORY ORDERS
CREATION
POWER TO AMEND CAVEAT
s. 417 (1) gives general power to the court
to order the registrar or LA to give effect to
the court order made as regards to any
proceedings relating to land. It is the duty
of the R or LA to comply with it.
Where a caveat is defective by reason of it
being larger than that to which the caveator
is entitle to, the court may order its
removal.
Vangedaselam v Mahadevan & Anor
The Representative of the deceased
applied for the removal of private caveat of
the deceased land . The HC order the
removal but FC allow the appeal by the
Appelalants. Held that a person who has
partial interest on the said land must apply
for caveat for the whole land but the effect
is only of that portion in which he has
interest.
Mosbert Bhd. (In Liquidation) v Stella D`
Cruz [1985]
Shankr J ordered the amendment of a
defective caveat u/s. 417 (2) but on appeal,
the Supreme Court held that the provision
of that section does not empower the court
to make such order.
Chng Sin Poey & Sons Sdn.Bhd. v Quek
Lian Meng [1979] The court has power to
order the amendment of a defective
caveat.
In this case a caveat binding the whole
land was entered when the caveator had
only intended to caveat a particular interest
only.
NATURE
DEFINITIONS
s. 334 defines a prohibitory order to
mean an order made pursuant to rules
of court by a court of competent
jurisdiction prohibiting the judgement-
debtor from effecting any dealing in
respect of his land or interest in that
land.
This order is issued when the creditor
had succeeded in his case against the
debtor.
Karuppiah Chettiar v Subramaniam :
a prohibitory order u/s 334 issued under
O 43 r 2 of Rules of Supreme Court
1957 is analogous to writ of fieri facias.
(a) A prohibitory order only take effect until it has been DURATION
entered by the Registrar u/s. 335 on the RDT of the said
land or interest. 1. s. 338 (1) Prohibitory Order shall lapse
at the expiry of 6 months from the date
(b) Once the prohibitory order is presented to the R, he on which it was made unless its
must endorsed on RDT the word “Prohibitory Order” duration is extended by an order of the
and state whether the order relates to land or interest. S. court.
335(2) 2. S. 338(2) a copy of the court order
must be presented to the Registrar
EFFECT before the expiry of the 6 months.
3. S. 339(1) a prohibitory order can be
(1) It prohibits s. 336 (1) & (2) withdrawn at any time by order of the
(a) registration, endorsement or entry of any court. Upon receiving the court order
instrument of dealing executed by or on behalf of regarding the withdrawal, the Registrar
the proprietor (but not any certificate of sale shall cancel the entry on RDT and
relating thereto eg. sale by receiver) states the reason and date.
(b) any claim to benefit of any tenancy exempt from 4. S. 339 (2) Besides expiry and
registration withdrawal, a prohibitory order also
(c) any lien holder`s caveat. ceases to have effect and the entry
shall be cancelled on the registration
(2) It does not prohibits registration, endorsement or of (1) any transfer executed by an
entry of any instrument, claim or lien holders caveat officer of the court or (ii) any certificate
where the instrument was presented prior to the of sale under the direction of court
prohibitory order takes effect. S. 336(3) pursuant to s. 259 and 265 of NLC.
(3) A judgement-creditor who attaches the land of a
judgement-debtor does not thereby acquire any
proprietary interest in the land. The right of the
judgement –creditor to sale the land is subject to all
other existing rights or interests thereon.
Karuppiah Chettiar v Subramaniam
FC held that a purchaser who has entered a caveat in
order to protect his interest in the vendor’s land has
priority over the claim of a judgement-creditor who
subsequently entered a prohibitory order.
Meriam Yaacob v Shell Malaysia Trading Sdn.Bhd.
FC held that a judgement creditor can only take
whatever interest the judgement-debtor has in the land
and not against any interest in the land in respect of
which the right of the judgement-debtor has since
ceased to exist.
Chua Hee Hung & Ors v QBE Supreme Insurance
Bhd.
R obtained judgement as against Chu Yun for sum of
money. Part of this sum was paid and remanding
unpaid. R obtained a prohibitory order against shares 2
leases and it was registered. Chu Yun`s lawyer replied
that Chu Yun has no interest in the properties concern .It
has been sold to the Appelents 10 years ago where full
purchase price had been paid and App had taken
possession. App applied to court to have the PO
removed but was dismissed .On appeal to Supreme
Court, the appeal was allowed and ordered to set aside
the PO. The SC held that when the vendor had received
the full purchase price and has given possession of the
land to the purchaser, he is only a bare trustees for the
purchaser. Chu Yun has no beneficial interest in the
properties.
Failure of the purchaser to enter private caveat to protect
their beneficial interest does not advance the case for
the respondents over the property.