UNITED ASIAN BANK BHD v PERSONAL REPRESENTATIVE OF

ROSHAMMAH (DECD) & ORS

Relevant principle: the application for an order of misjoinder or non-joinder may be made
at any stage of the proceedings, but before the final judgment. ‘At any stage of the
proceedings’ means at any stage before the final order is made, not after it has been perfected
and extracted.

Parties in the case:

1. United Asian Bank: the plaintiff

2. Roshammah: the deceased
3. A. Subramaniam: the borrower, the husband of the deceased and the representative of
the deceased's estate. The borrower was named as defendant in his capacity as the
personal representative of the estate. He is also a bankrupt.
4. The deceased's children: the interveners

Facts of the case:

1. Roshammah a/p Samuel ('the deceased') was the registered owner of a piece of land.\
2. The borrower approached the bank for credit facilities. The deceased executed a lien
holder's caveat and deposited the title to the said land with the plaintiff as a security to
the plaintiff.
3. The deceased also executed a personal guarantee.
4. Thereupon the borrower was given overdraft facilities. ( overdraft facilities is
a credit agreement made with a financial institution that permits an account holder to
use or withdraw more than they have in their account, without exceeding a specified
maximum negative balance).
5. The borrower did not pay his taxes. The borrower was made a bankrupt by the
Department of Inland Revenue.
6. The deceased who was ill with cancer died on 13 November 1986. The family did not
apply for letters of administration.
 7. Eventually in 1989, the bank filed an action in the Sessions Court where the borrower
was formally appointed to represent the estate of the deceased.
8. The bank then filed under s 281(2) of the National Land Code 1965 for an order of
sale. The borrower was named as the defendant in his capacity as the personal
representative of the estate.
9. Because the defendant was a bankrupt, it involves the Official Assignee. However,
the Official Assignee disclaimed any interest in the said land as it had nothing to do
with the personal bankruptcy of the borrower.
10. The court accordingly made an order in terms of the application for the recovery of
the amount due to the bank with continuing interest and costs. The auction was fixed
for 6 May 1991. This order was not appealed against. It was duly perfected and
extracted on 20 February 1991.
11. The summons for directions was then taken out and served on the defendant and the
order made on 19 March 1991. The bank produced a valuation report and the licensed
auctioneer issued the proclamation. All was set for the sale to go on.
12. At all times material to these proceedings, the borrower and the interveners were
living in the said house. They were well aware of what was going on.
13. Only two days before the sale was to take place, these interveners filed a summons-
in-chambers asking for the sale to be stayed pending the disposal of their application
to be substituted or added as defendants and for such other relief as may be just.

Decisions of the court:

I. The order of sale which the interveners are now seeking to set aside is a final order
unless appealed against. Once it was made, drawn up and perfected, this court is
functus officio and has no power to set it aside. (‘Functus officio’ means: having
fulfilled the function, discharged the office, or accomplished the purpose, and
therefore of no further force or authority).
II. Intervention to be legitimate must qualify with the conditions prescribed by O 15 r
6(2)(b)(i) or (ii) of the Rules of the High Court 1980- It may be permitted at any stage
of the proceedings.
III. This means it must be applied for before the final order is made, not after it has
been perfected and extracted. In the current case, the interveners sought to come in
two days before the sale actually took place
IV. Secondly, a person can only be regarded as a proper party if his presence before the
court is imperative for the adjudication. In a general sense what this means is that the
intervener must have a direct legal or financial interest in the action. In so far as the
bankruptcy of the borrower was concerned, as between himself and his creditor, he
alone had such an interest.
V. In conclusion, how the interveners and their advisors took it upon themselves to try
and reopen issues which had been settled in the bankruptcy proceedings and in
the judgment which led to the final order of sale being made defies the rules
relating to both procedure and substance. This purported intervention was an
unwarranted intrusion for which the interveners must pay the price.
VI. The court dismissed their application.