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PETITIONER: M.V.A.L. QUAMAR

       Vs.

RESPONDENT: TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. & ORS.

DATE OF JUDGMENT:       17/08/2000

BENCH: S.B. Majumdar  J. & Umesh C. Banerjee  J.

JUDGMENT:

BANERJEE, J. L....I..........T.......T.......T.......T.......T.......T..J Leave granted in both the SLPs.

    By  consent of learned Senior Advocates of the parties, the  appeals were heard finally and are being disposed of by this  common judgment.

    Assumption  of Admiralty jurisdiction by Andhra Pradesh High Court and passing of an order of arrest in execution of a  judgment and decree of the High Court of Justice  Queens Bench  Division, Admiralty Court in London in case No.  1994 Folio  No.   1693  dated  9.11.1988, is the  key  issue  for discussion in these appeals by the grant of special leave.

    Adverting to a brief reference to the factual aspect of the  matter  at this juncture it appears that  an  Execution Petition  was  filed before the learned Single Judge of  the Andhra  Pradesh  High  Court in terms of Section 15  of  the Admiralty  Courts  Act and Section 44A read with  Order  XXI Rule  10  of the Code of Civil Procedure for  executing  the decree  issued  by the High Court of Justice  Queens  Bench Division  Admiralty  Court  in  an   action  by  the   first respondent  against  the second respondent  herein  claiming damages  for  repudiation  of an L.O.F.   salvage  contract. Needless to record that the second respondent was said to be the owners of the vessel M.V.AL QUAMAR ex AL TABITH.

    The  factual  score depicts that pending the  Execution Petition,  the  decree  holder prayed for  an  Interlocutory Order  to  issue  a  warrant of arrest  against  the  vessel together with Hull:  tackle:  Engines:  Machinery equipments stores  etc.  The learned Single Judge of the Andhra Pradesh High  Court on 15th September, 1999 granted an interim order as  prayed for on a prima facie view of the matter that  the Execution  Petition can be filed in the High Court which  is otherwise  having  original   admiralty  jurisdiction.   The records depict that the appellant herein filed a petition to vacate  the interim order principally on the ground that the ownership  of the ship having been transferred bona fide and for valuable consideration to Quamar Shipping Ltd., the ship as  attached in terms of the order of 15th September,  1999, cannot possibly be kept under attachment in execution of the decree  against the original owner being the respondent No.2 herein.   The  appellant  contended that in any  event,  the latter  being,  not  a party to the  judgment,  question  of

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execution  on  the basis thereof would otherwise be a  total miscarriage of justice.

    Incidentally,  the learned Single Judge in his judgment has been pleased to record that the matter in issue involves eminently an arguable case as regards the maintainability of the   Execution  Petition  and   the  proper  course  should therefore  be, as the learned Judge pointed out to hear  the Execution  Petition  itself at a date early and to  continue interim order during the interegnum.

    The  records depict that the appellant herein subsequent  to the  order  as  above  moved the  Appellate  Forum  and  the Appellate  Court  while  dismissing the appeal  observed  as below:-

    In our view, the opinion expressed by the  learned single Judge that the execution petitioner (first respondent herein)  has an arguable case as regards the maintainability of  the  E.P.  and that the contentious issues ought  to  be dealt  with  more appropriately at the hearing of  the  E.P. instead  of entering into a discussion at the  interlocutory stage,  cannot be faulted.  The E.P.  itself has been posted for  hearing  and the hearing would have been  concluded  by now,  but  for this intervening appeal.  Equally, the  other reason  given  by  the learned Judge that  vacation  of  the interim  order would have the potential effect of making the execution  petition  infructous and, therefore, the  interim order  ought not be vacated before the disposal of the  E.P. also  appeals to us.  Considerations of prima facie case and balance  of  convenience were rightly taken into account  by the learned single Judge.

    We see no valid ground to suspend the interim order.

    The contention of the learned counsel for the appellant that continuance of interim order should be made conditional upon  furnishing  of  security or at least insisting  on  an undertaking   to   indemnify  the   loss,  does  not   merit acceptance.   Incidentally,  it  may be mentioned  that  the counsel  for the appellant did not express any doubts  about the  solvency and financial capacity of the first respondent company.

    However, the grievance of the appellant that on account of the interim order, the appellant is incurring substantial expenditure  day  to day, has to be suitably redressed.   To this  limited  extent,  we  are inclined  to  safeguard  the interest  of the appellant by directing the first respondent to  furnish  an  undertaking  to  the  satisfaction  of  the Registrar  (Judicial) of this Court to pay a maximum  amount of  Rs.600  U.S.  Dollars per day from 19.11.1999  (date  of hearing  this  appeal) onwards till the date of disposal  of E.P.   and also to pay crews wages subject to the proof  of actual  expenditure being furnished by the appellant to  the first   respondent   in   respect    of   all   the   items.

    The   O.S.A.   is  dismissed   subject  to  the   above direction.  No costs.

    We consider it a fit to be heard by Division Bench.

    In  terms of the order as above, the Execution Petition

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itself  was  placed  before the Bench of the  learned  Chief Justice  wherein  upon recording concurrence as regards  the maintainability  of  the petition it was observed  that  the execution  petition be heard on merits and hence the Special Leave  Petition  before this Court under Article 136 of  the Constitution  being SLP No.4410 of 2000.  Incidentally,  be it  noted that there is in the record of this Court  another SLP  being SLP No.18616 of 1999 against the judgment of the Division  Bench  of the High Court as passed earlier and  as noticed  above,  but since both the matters pertain to  self same  subject matter, this Bench deemed it fit to hear  both the appeals together and deal with the same in one judgment. Before   adverting  to  the   most  illuminating  and  lucid submissions   of  the  learned   Senior  Advocates  Shri  P. Chidambaram, for the appellant and Shri Ashok H.  Desai, for the  respondent  No.1,  a brief backdrop  of  the  admiralty jurisdiction  of  the country may be a useful  introduction: The  three  erstwhile Presidency High Courts (in common  and popular  parlance  Chartered High Courts) namely,  Calcutta, Bombay  and  Madras were having the Letters Patent  for  the conferment  of the ordinary original civil jurisdiction  and by  reason of the provisions contained therein read with the Admiralty  Court  Act,  1861  and  subsequent  enactment  of Colonial  Courts of Admiralty Act, 1890 and Colonial  Courts of  Admiralty (India) Act, 1891, the admiralty  jurisdiction on the three High Courts noticed above can be fairly traced. This  special  Admiralty  jurisdiction   was  saved  by  the Government  of  India  Act, 1915 as also that  of  1935  and subsequently  protected  in  terms  of Article  225  of  the Constitution.

    By  and  under the  provisions  of  Colonial Courts of Admiralty Act 1890, the High Courts of these three Presidency  towns were conferred with the same  jurisdiction as  was  vested  in the High Court of England and  the  High Courts  were declared to be otherwise competent to  regulate their  procedure  and practice as would be deemed  necessary corresponding  to the Indian perspective in exercise of  the admiralty  jurisdiction  by  way  of rules  framed  in  that regard.  There is thus no manner of doubt that there existed or  is  existing  any fetter in regard to  the  exercise  of admiralty jurisdiction in so far as the three High Courts at Calcutta,  Bombay  and  Madras  are  concerned.

     The  other introductory  aspect pertains to the conferment of admiralty jurisdiction  on to the Andhra Pradesh High Court.  In terms of  provisions of Andhra State Act of 1953 (Act 30 of  1953) certain  territories  from  erstwhile State of  Madras  were included  in  the State of Andhra Pradesh and the  Court  at Andhra Pradesh was re-designated as the High Court of Andhra Pradesh  when  the  State  was so  named  under  the  States Re-organisation  Act,  1956.  The Andhra Pradesh High  Court being the successor of the High Court of Madras [presently Tamilnadu]  has  thus  the similar jurisdiction  as  was  so vested  in  the  Madras High Court prior  to  the  transfer. Needless to say that since Visakhapatnam is also included in the State of Andhra Pradesh, the port of Visakhapatnam falls within  the  admiralty  jurisdiction of the  High  Court  of Andhra  Pradesh.  It is in this context observations of this Court  in M.V.  Elisabeth & Others v.  Harwan Investment and Trading  Pvt.Ltd.,  Goa AIR 1993 SC 1014 seem to be of  some assistance.   This  Court  in  paragraph 26  of  the  report observed:

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    Assuming  that the admiralty powers of the High Courts in  India  are  limited to what had been  derived  from  the Colonial  Courts  of Admiralty Act, 1890, that  Act,  having equated  certain  Indian  High Courts to the High  Court  of England  in  regard  to   admiralty  jurisdiction,  must  be considered  to have conferred on the former all such  powers which  the latter enjoyed in 1890 and thereafter during  the period  preceding  the Indian Independence Act, 1947.   What the  Act  of  1890  did  was,  as  stated  earlier,  not  to incorporate  any  English  statute into Indian law,  but  to equate  the admiralty jurisdiction of the Indian High Courts over  places,  persons,  matters and things to that  of  the English  High  Court.  As the Admiralty jurisdiction of  the English   High   Courts  expanded   with  the  progress   of legislation,  and  with the repeal of the earlier  statutes, including  in substance the Admiralty Court Acts of 1840 and 1861,  it  would  have  been   reasonable  and  rational  to attribute to the Indian High Courts corresponding growth and expansion    of   admiralty     jurisdiction   during    the pre-independence  era.  But a restrictive view was taken  on the question in the decision of the High Courts cited above.

    There  is thus no scope to conclude that the  Admiralty jurisdiction  of  the  Andhra   Pradesh  High  Court  stands frozen or atrophied in any way whatsoever.

    The  discussion  above  pertaining   to  the  admiralty jurisdiction of the Andhra Pradesh High Court in our view is rather  pertinent more so by reason of the submissions  that the  matter  in issue pertains to maritime  claim.   English legislations after the Admiralty Courts Act, 1890 are galore in  the  matter  of  widening the scope  and  ambit  of  the jurisdiction  of the Admiralty Courts:  We however need  not go  into  that  aspect of the matter  any  further,  suffice however,  to record our concurrence that jurisdiction of the Indian  Courts  also  has not been atrophied  in  any  way whatsoever.  [vide MV Elisabeth (supra)].

    The  cardinal issue  pertains to the invocation of Section 44A of the Code in  the  matter  under consideration, for enforcement  of  a foreign  judgment  in the Andhra Pradesh High  Court  stands contradicted  by  Mr.  Chidambaram on two  specific  counts. The same being on the first count:  the Civil Procedure Code cannot possibly be made applicable to any matter of criminal or  admiralty or vice admiralty jurisdiction.  The basis  of the submission however, was laid on Section 112 of the Code. The  ouster provision (Section 112) may thus be noted herein below  for  its true scope and purport:

    12.  (1) Nothing contained in this Code shall be deemed

    (a)  to  affect the powers of the Supreme  Court  under article 136 or any other provision of the Constitution, or

    (b)  to  interfere with any rules made by  the  Supreme Court, and for the time being in force, for the presentation of  appeals  to  that Court, or their  conduct  before  that Court.

    (1)  Nothing herein contained applies to any matter  of criminal  or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.

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    Incidentally,   Section   112(1)(a)   and   (b)   stand substituted  by  the Adaptation of Laws Order 1950 and as  a matter  of  fact,  the state of affairs  prevailing  in  the pre-Independence   period   has  been   set  right  by   the legislation  of 1950 (Adaptation of Laws Order).  A look  at the provisions of two Parallel Codes of Civil Procedure 1882 and  1908  together with the moderation  after  Independence will  obviously  clarify the situation.  The Parallel  Codes and the present Section 112 thus runs:

L.......T.......T.......T.......T.......T.......T.......T..J

Code of 1882            Code of 1908       Present                                            Section 112

616. Nothing herein     112.(1) Nothing    112.(1) Nothing contained shall be      contained in this  contained in understood-             Code shall be      this Code shall                         deemed-            be deemed-

(a) to bar the full     (a) to bar the     (a) to affect and unqualified         full and unquali-  the powers of exercise of Her         fied exercise of   the Supreme Majesty’s pleasure      His Majesty’s      Court under art- in receiving or         pleasure in rece-  icle 136 or any rejecting appeals       iving appeals to   other provision to Her Majesty in       His Majesty in     of the Constitut- Council, or             Council, or other  ion, or otherwise howsoever,    -wise howsoever, or                      or

(b) to interfere with   (b) to interfere    (b)to interfere any rules made by the   with any rules      with any rules Judicial Committee of   made by the Judi-   made by the Privy Council, and      cial Committee of   Supreme Court, for the time Being in   the Privy Council,  and for the time force, for the present- and for the time    being in force, ation of appeals to     being in force,     for the present- Her Majesty in Council  for the presenta-   ation of appeals or their conduct before tion of appeals to  to that Court, the said Judicial       His Majesty in Cou- or their conduct Committee.              ncil, or their      before that                         Conduct before the  Court.                         said Judicial                         Committee.

[And] nothing in this   (2)Nothing herein   (2)Nothing Chapter apples to any   contained applies   herein contai matter of criminal      to any matter of    -ned applies to or admiralty or vice-   criminal or admir   any matter of admiralty jurisdiction. -alty or vice-      criminal or or to appeals from      admiralty jurisdi-  admiralty or orders and decrees      ction, or to        vice-admiralty of Prize Courts.        appeals from orders jurisdiction,                         and decrees of      or to appeals                         Prize Courts.       from orders and                                             decrees of                                             Prize Courts.

    This comparative analysis of the provisions of the Code

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as  amended from time to time unmistakably goes to show that as  regards Section 112(a) and (b) in the  post-Independence period,  the  powers of this Court under Article  136  stand substituted in place and stead of His Majesty in Council and the Judicial Committee of the Privy Council.  The Adaptation of  Laws  Order  however, did not in fact, add to  or  alter sub-section  (2)  of Section 112 which also finds  place  in Section 616 of the 1882 Code in identical language.  The non exclusion  of sub-section (2) howsoever surprising it may be in  independent  India, but the fact remains that  the  1950 legislation  has chosen not to omit it from the Statute Book and  as such a meaning shall have to be attributed  thereto. It  is  significant to note that sub-section (2) of  Section 112  even after the Adaptation of Laws Order 1950 speaks  of decrees of Prize Courts.  In Halsburys Laws of England (4th Edn.  Vol.- I ) paragraph 309, the following has been stated to be the jurisdiction of the Prize Courts:

    309.   Assignment  to  Admiralty   Court.   The   whole jurisdiction  of the High Court belongs to all the divisions alike,  and  all the judges of that court have equal  power, authority  and  jurisdiction.   However,   every  action  to enforce  a claim for damage, loss of life or personal injury arising out of a collision between ships or the carrying out or  omission to carry out a manoeuvre by one or more of  two or  more  ships  or  non-   compliance  with  the  collision regulations  is assigned to the Queenss Bench Division  and taken  by  the Admiralty Court.  The same applies  to  every limitation  action,  and  generally to  causes  and  matters involving  the  exercise  of   the  High  Courts  admiralty jurisdiction, or its jurisdiction as a prize court.

    The  word  Prize has also been dealt with in  Halsburys Laws  of England (4th Edn.  Vol.  I ) in paragraph 352 which reads as below:

    352.   Prize.   The High Court is a prize court  within the meaning of the Naval prize Acts 1864 to 1916, as amended by  any subsequent enactment, and has all such  jurisdiction on  the high seas and throughout Her Majestys dominions and in  every place where Her Majesty has jurisdiction as, under any Act relating to naval prize or otherwise, the High Court of  Admiralty  possessed when acting as a prize court.   The Admiralty  Court  takes  causes and  matters  involving  the exercise of the High Courts jurisdiction as a prize court.

The  issue arises as to whether we have after  Independence, available  in this country, the decrees of the Prize  Courts or   there  is  even   any  existence  thereof.    Admiralty jurisdiction  of the courts as noticed hereinbefore has been by   reason  of  the  Letters   Patent  and  certain   other legislations  saved  by the provisions of  the  Constitution apart  therefrom,  question  of  ascribing  any  independent admiralty  court  as prize court in the  country  presently, would  not  arise:   Be that as it may, we do  not  wish  to express  any definite opinion in regard thereto by reason of the  fact that the same is not called for in the  contextual facts  of the matter under consideration, suffice it to note that a doubt persists as to the applicability to sub-section 2  of  Section  112.   In any event, if the  intent  of  the legislation  was  to  do  away  with  the  applicability  of provisions  of  the CP Code, in terms of Section 112 (2)  of

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the  Code then and in that event, question of continuance of Section   140   of  the  Code   would   not   have   arisen. Incidentally,  Section  140 (1) and (2) is a  repetition  of Section  645(a) of the 1882 Code.  For convenience sake, Two Parallel  Codes of 1882 and 1908 and the present Section 140 which is in identical language as that of the 1908, Code, is set out herein below:

               Code of 1882.

645-A, In any Admiralty or Vice- Admiralty cause of salvage, towage  or collision, the Court whether it be exercising its original  or its appeallate jurisdiction, may, if it  thinks fit,  and upon request of either party to such cause  shall, summon  to  its assistance, in such manner as the Court  may [by  rule,  from  time  to   time,]  direct,  two  competent assessors,  and  such  assessors  shall  attend  and  assist accordingly.

Every  such  assessor  shall  receive   such  fees  for  his attendance  as  [the  Court by rule prescribes,  Such  fees] shall  be paid by such of the parties as the Court [in  each case] may direct.

                    Code of 1908/Code of 1976                       ------------------------

140.(1) In any Admiralty ir vice-Admiralty cause of salvage, towage  or collision, the court whether it be exercising its original  or  its appellate jurisdiction, may, if it  thinks fits, and shall, upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as  may  be prescribed, two competent assessors;   and  such assessors shall attend and assist accordingly.

(2)  Every  such  assessor shall receive such fees  for  his attendance,  to be paid by such of the parties as the  Court may direct or as may be Prescribed.

    It  is  in  this context a rather old decision  of  the Bombay  High Court seem to be apposite.  The learned  Single@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Judge of the High Court in the case of The Bombay and Persia@@ JJJJJJJJJJJJJJJJJ Steam  Navigation Company Ltd.  v.  Shepherd and Haji Ismail Hossein  (ILR (1888) XII Bombay 237) was pleased to state as below:

    The rules regulating Admiralty practice provide that a suit  shall  be  commenced  by a  plaint  according  to  the provisions of the Code of Civil Procedure.  They were framed when  the  Code of 1859 was in force, and when the power  of the  Court to regulate its procedure was more extended  than it  is  at present.  The rules subsequent to the  one  above

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referred  to,  provide  for the taking out of a  warrant  of arrest  when  the  suit  is  in rem,  and  make  no  special provision  when  the  suit  is in personam ;   but  Rule  54 directs that proceedings not provided for by the rules shall be  regulated by the rules and practice of the High Court in suits brought in it in the exercise of its ordinary original civil  jurisdiction.   Though these rules do not  apparently contemplate  a  suit in rem and in personam being  combined, they do not expressly or by necessary implication forbid it. The  Code of Civil Procedure of 1882 applies to  proceedings on  the  Admiralty side of the High Court ;   section  645-A shows that this is so.

    Needless  to  record here that in accordance  with  the salutary  principle of interpretation and one of the  golden canon  of  statutory  interpretation being that  the  latter provision  shall prevail over the earlier and in the  event, the  Adaptation of Laws Order deemed it expedient to exclude applicability  of  the  Civil  Procedure Code  in  terms  of Section  112 (2) as is being contended by Mr.   Chidambaram, question   of  incorporating  Section   140  or   continuing therewith  and in any event in the 1976 Code would not  have arisen.   The  learned Single Judge in our view has  rightly decided  the  applicability of the Code of  Civil  Procedure even  in  Admiralty  jurisdiction.  Reliance was  placed  in support of the exclusion of the Code pertaining to Admiralty jurisdiction  in the decision of the Calcutta High Court  in the case of State of Ukraine v.  Elitarious Ltd.  (wherein I was  a  party).  A mere perusal of the judgment of the  High Court,  however,  negates the contention in support  of  the Appellant.   As  a  matter of fact, Mr.   Ashok  H.   Desai, appearing  for  the Respondents relies on the judgment as  a judgment  in sub- silencio and we feel it rightly so,  since the  judgment  dealt with the various provision of  C.P.Code vis-a-vis.   the Admiralty actions and the ratio decendi  of the  decision being Admiralty jurisdiction is not a ordinary original  civil jurisdiction and thus not a suit within  the meaning  of Section 86 of the Code.  In paragraph 37 of  the decision  in State of Ukraine v.  Elitarious Ltd.   (supra), the  High  Court upon reference to the Jolly  Varghese  case (Jolly  George Varghese and another v.  The Bank of Cochin : AIR 1980 SC 470) observed as below:

    37.   In  this  connection reference may  be  made  to decision  of the Supreme Court in (17) Jolly George Varghese and  another v.  The Bank of Cochin reported in AIR 1980  SC page 470.  While considering Article 11 of the International Covenant  on  Civil and Political right to which India is  a signatory,  the  Apex Court in paragraph 6 of  the  Judgment inter alia made the following observations:-

    ...India  is  now a signatory to this covenant  and Article  51(c)  of the Constitution obligates the  state  to foster respect for International Law and treaty obligations in  the  dealings  of organised peoples with  one  another. Even  so  until the Municipal Law is changed to  accommodate the  covenant  what binds the Court is the former,  not  the latter.   A.H.  Robertson in Human Rights  in National and International  Law  rightly points out  that  International Conventional   Law   must   go   through  the   process   of transformation   into   the  Municipal    Law   before   the international treaty can become an internal Law..

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    In view of the aforesaid decision of the Supreme Court, in our opinion, even if a suit appears from the statement in the  plaint to be barred by any International Law the plaint cannot  be  rejected unless such International Law has  gone through  the process of transformation into Municipal Law. Thus,  we conclude that in order to bring a case within  the mischief  of  Order  7  Rule  11(d) of  the  Code  of  Civil Procedure,  the suit must appear from the statement made  in the plaint to be barred by any state- made law including any ordinance,  order, bye-law, rule, regulation,  notification, custom  or usages having in the territory of India the force of  law.   As the word has not been defined in the  Code  of Civil Procedure, in arriving at the aforesaid conclusion, we have thought it profitable to take aid of Article 13 (3) (a) of the Constitution of India.  Thus, we find no force in the second contention of Mr.  Mukherji.

    On  the wake of the aforesaid, we are unable to  record our  concurrence pertaining to the exclusion of the Code  in Admiralty  jurisdiction.  Significantly, the Admiralty Rules of  the  High  Court at Madras, which stand adopted  by  the Andhra  Pradesh High Court in no uncertain terms also negate the  submission  in  support of the  appeal.   The  relevant Admiralty Rules are however set out herein below:

    2.   A  suit shall be instituted by a plaint drawn  up, subscribed  and verified according to the provisions of  the Code  save  that if the suit is in rem, the defendants,  may subject  to such variation as the circumstances may require, be  described as the owners and parties interested in  the vessel  or  other property proceeded against instead  of  by name.

    29.   An  attorney  instituting  a  suit  against   any property  in  respect of which a Caveat has been entered  in the register of Admiralty suits shall forthwith serve a copy of  the plaint upon the party on whose behalf the Caveat has been entered or upon his attorney.

    32.   If  when  the suit comes before the Court  it  is satisfied  that the claim is well founded, it may  pronounce for  the amount which appears to be due and may enforce  the payment thereof by order and attachment against the party on whose  behalf the Caveat has been entered and by the  arrest of  the property if it then be or thereafter come within the jurisdiction of the Court.

    34.   Every  sale  under decree of  the  Court,  shall, unless  the  Judge  shall otherwise order, be  made  by  the Sheriff  in  like  manner as a sale of movable  property  in execution of a decree in an ordinary civil suit.

    50.   Where no other provision is made by these  rules, proceedings in suits brought in the Court in the exercise of its  Admiralty Jurisdiction shall be regulated by the  Rules and  Practice  of  the Court in suits brought in it  in  the exercise of its Ordinary Original Civil Jurisdiction

    These  rules having co-relation with the ordinary civil jurisdiction  thus cannot but be said to be subscribing to a view contra to that canvassed before us by the Appellant.

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    In  any  event Section 112 is in Part VII of  the  Code dealing  with the provisions pertaining to appeals:  whereas Sections  96  108 in Part VII of the Code deal with appeals from  original decrees, Section 109  112 deal with  appeals to   the  Supreme  Court.   The   specific  words  used   in sub-section  (2)  of  Section 112 to wit:   Nothing  herein contained  (emphasis  supplied) cannot possibly negate  the Code in its entirety.  The word herein as emphasised above has  a  specific  connotation and will have to  be  given  a definite   meaning   which  goes    alongwith   the   entire legislation.   In  the  event  the  legislature  intended  a complete  ban,  then  and in that event the  words  used  in sub-section  (1)  in the normal course of events would  have been  used since sub-section (1)used the expression nothing contained  in  this Code- Sub- section (1) pertains to  the powers  of the Supreme Court and the legislature is specific enough  to  record  the same.  In the event of  there  being similar  intent,  legislature  would have used  the  similar language  and  not  herein  as noticed  above.   The  word herein  thus  cannot  possibly  be meant  to  include  the entirety of the Code but to the group of provisions in which it  appear.   Section 112 thus evidently have two  different areas  of operation whereas sub- section (1) is wider in its amplitude,   sub-section  (2)  is   limited  in  scope   and restrictive in its applicability.  This is more so by reason of  the discussion hereinbefore in this judgment  pertaining to  Section 140 of the Code and the insertion thereof in the Code  is  clear and unambiguous to the effect  that  Section 112(2)  does not render the Code completely inapplicable  to admiralty  cases.   The  Bombay High Court in  1888  ILR  12 Bombay (supra) has thus came to the conclusion that the Code of  Civil  Procedure of 1882 applies to proceedings  on  the admiralty  side  of  the  High   Court  and  Section   645-A (presently  Section  140)  shows the same.   We  record  our concurrence with the observation of the Bombay High Court in 12  Bombay  (supra) and approve the same in that regard.   A recent  decision of this Court in the case of Videsh Sanchar Nigam  Limited  (Videsh Sanchar Nigam Ltd.  v.   M.P.Kapitan Kud  and Others (1996 (7) SCC 127) also lends concurrence to the  applicability  of  the  Code   of  Civil  Procedure  in admiralty  action  as well since Section 140 has been  taken recourse  to  in the matter of appointment of  assessors  to give  their  estimate  of  the anchoring  position  and  the probable  involvement  of the first Respondent (in the  case under   reference)   in   breakage  of   the   cable.    The applicability  of  the  Code in the admiralty action,  as  a matter of fact, was not doubted, on the contrary Section 140 was  taken recourse to for the purposes of assessment of the situation.

    Needless  to  record  that  exclusion  of  jurisdiction cannot be inferred readily unless of course there are cogent materials   in  regard  thereto.   In  the   matters   under consideration  the submissions of Mr.  Chidambaram, however, completely  overlooks the provisions as contained in Section 4  of the Code.  We need not dilate on this issue suffice it to  record  that Section 4 being a general  provision  which excludes  the operation of the CP Code in specific instances as  mentioned  therein  and  since  exclusion  of  admiralty jurisdiction is not specifically mentioned, we are unable to sustain  the  submissions of Mr.  Chidambram, in any  event, since there is no such general exclusion.

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    In  that  view  of the matter, question of  having  any concurrence  with  the  submissions of Mr.   Chidambaram  as regards  the  bar  of  applicability of the  Code  of  Civil Procedure  in  Admiralty action does not and  cannot  arise, though  I  must frankly confess that the submissions of  Mr. Chidambaram  at  the first blush was very attractive  but  a closer  scrutiny  of the provisions as noticed  above,  with respect, rendered the same totally insignificant.

    Adverting now to the second count of submissions of Mr. Chidambaram  to the effect that the judgment of the  English Court  cannot  but be termed to be the judgment in  personam and  the Execution Petition for the arrest of the vessel and subsequent  order  thereon  thus is not  maintainable:   Mr. Chidambaram  found fault with the Bench decision of the High Court  affirming  the  maintainability   of  the   Execution Petition   since   arrest  of  a  ship  according   to   his contentions,  operates in rem and not in personam and it  is on this score, strong reliance was placed on the decision of the  Court of Appeal in the case of The City of Mecca  (1881 (6)  P.D.   106).   Jessel  M.R.    in  the  decision  under reference stated as below:

    There  is no suggestion from beginning to end that  the ship  is  liable;  there is no declaration that the ship  is liable,  and it does not appear on the proceedings that  the ship was even within the jurisdiction at the time the action was commenced against the owners.  An action for enforcing a maritime  lien  may no doubt be commenced without an  actual arrest  of  the ship, but there is no suggestion  that  they intended  anything  of the kind, and, in fact, the law  does not allow it.  An action against a ship, as it is called, is not  allowed by the law of Portugal.  You may in England and in most countries proceed against the ship.  The writ may be issued  against the owner of such a ship, and the owner  may never  appear,  and you get your judgment against  the  ship without  a single person being named from beginning to  end. That  is  an  action  in  rem,  and  it  is  perfectly  well understood  that  the judgment is against the ship.  In  the present  case the judgment does not affect the ship at  all, unless   the   ship  should   afterwards  come  within   the jurisdiction  of  the Portuguese Court, and then it  can  be made  a  proceeding by which you can afterwards  arrest  the ship  and get it condemned.  Therefore, it seems to me to be plain  that this is a personal action as distinguished  from an  action in rem, and it is nothing more or less;  and  any attempt  to  make it out something else (because the law  of Portugal  does not allow actions in rem) is really to change the  real  nature  of the action to meet the  exigencies  of those who want to make the judgment of the Court of Portugal go further than it really does.

    In  the  similar vein, Lush, J.  in The City  of  Mecca (supra) also observed:

    Now upon the face of this judgment, there is not a word about a claim against the ship from beginning to end.  It is well  known that the owner of a vessel that has suffered  by collision  with  another has two remedies.  He may bring  an action  against the captain or owner of the other vessel and

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recover damages, or he may sue in the Court of Admiralty and make  the  ship pay.  It has been stated before us that  the Court  of  Admiralty has been abolished in Portugal and  the jurisdiction is transferred to a Court of Commerce, and that there  is no power now in that country to institute what are called  actions  in rem.  That is what I collect from  these proceedings.   Whether  there  is  or is not,  seems  to  me immaterial.   There  certainly  is a proceeding by  which  a vessel  can  be laid under embargo, that is arrested, if  an action  is  brought against the captain, in order to  secure payment,  by lien perhaps, of ultimate damages;  but whether that can be carried out to proceedings in rem I do not know, nor  does it strike me to be material.  But what is material in  considering  an  action of the nature  claiming  damages alone  is  that  there is nothing about the  ship  from  the beginning to the end, as I have said.

    I  do not see how it was possible for them to carry and execute  a maritime lien when they had not possession of the thing.   The vessel was out of their jurisdiction, it was an English  vessel, and it naturally left the Portuguese coast; and  under  the decree of that Court, if a purchaser had  to prove  his  title he could not quote a single word  of  this judgment or any judgment at all that would justify a sale of that  ship.   It is a judgment purporting to be  a  judgment against  the persons of the captain and owners, and if  they ever  find  them within their jurisdiction they may  execute according  to  the  process they have at their  command  the judgment  against them individually.  But as to any judgment against  the ship, I doubt if the ship were found there  now that  they could seize it.  But even if they found the  ship there, and they could without further process seize the ship and  sell  it  in satisfaction, that would not make  this  a judgment  in  rem which any Court in this country  could  be called on to execute.

    The  decision in The City of Mecca (supra) was,  lately followed  in  the Alletta (1974 1 Llyods Law Reports  40) and  Sylt (1991 1 Llyods Law Reports 240).  The  decision of  the  Queens  Bench Division (Admiralty  Court)  in  the Despina  G.K.,  [1983  1  All ER 1]  has  also  been  very strongly  relied in support of the contention that Admiralty jurisdiction  is available by a proceeding in rem and not in personam.

    Mr.   Chidambaram,  has also placed strong reliance  on the  Brussels Convention, being the international convention relating  to the arrest of seagoing ships of 1952:  while it is  true  that  India  has not adapted  the  same,  but  its relevance  however  cannot  be  doubted in any  way  in  the perspective of maritime lien.  On this score, however we can usefully note the observations of this Court in MV Elisabeth (supra) which reads as below:

    Indian  legislation  has   not,  however,  progressed, notwithstanding  the Brussels Protocol of 1968 adopting  the Visby Rules or the United Nations Convention on the Carriage of  Goods  by  Sea,1978  adopting the  Hamburg  Rules.   The Hamburg  Rules  prescribe  the minimum  liabilities  of  the carrier  far more justly and equitably than the Hague  Rules

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so  as  to correct the tilt in the latter in favour  of  the carriers.   The  Hamburg Rules are acclaimed to be  a  great improvement  on the Hague Rules and far more beneficial from the  point of view of the cargo owners.  India has also  not adopted  the International Convention relating to the Arrest of  Sea-going Ships, Brussels, 1952.  Nor has India  adopted the  Brussels  Conventions  of  1952   on  civil  and  penal jurisdiction  in  matters  of collision;  nor  the  Brussels Conventions  of 1926 and 1967 relating to maritime liens and mortgages.   India  seems  to be lagging behind  many  other countries   in  ratifying  and   adopting   the   beneficial provisions  of  various conventions intended  to  facilitate international  trade.   Although these conventions have  not been  adopted by legislation, the principles incorporated in the  conventions are themselves derived from the common  law of   nations   as   embodying   the  felt   necessities   of international  trade and are as such part of the common  law of  India  and  applicable for the enforcement  of  maritime claims against foreign ships.

    Mr.   Chidambaram  in continuation of  his  submissions rather  emphatically  contended  that  the  High  Court  has significantly  overlooked  the fact that it is only  when  a decree  in  rem is passed that a vessel may be arrested  for obtaining  satisfaction  of the claim or the execution of  a decree  in  rem  especially  in  a  maritime  action  having maritime lien.  Mr.  Chidambaram contended that in the event however,  the proceedings are in personam as in the  present case  then and in that event, exercise of such a power by  a foreign  litigant would not arise.  The appellant  contended that  the  decree  holder has to proceed  only  against  the judgment debtor and not against the vessel and it is on this count  a  strong  criticism has been  levelled  against  the judgment of the High Court to the effect that there has been a  total confusion as regards exercise of admiralty power in execution  of  a judgment in rem and judgment  in  personam. Admittedly  the decree of the English Court is in  personam, and   against  respondent  No.2   and  not  the   appellant- petitioner herein.  It is on this score further reliance was placed  on  the  decision of this Court in  the  case  World Tanker  Carrier Corporation vs.  SNP Shipping Services  Pvt. Ltd.   & Anr.  [1998 (5) SCC 310] wherein this Court had the following to observe:

    20.   Under principles of Private International Law, a court  cannot  entertain  an   action  against  a  foreigner resident  outside the country or a foreigner not carrying on business  within  the  country,  unless he  submits  to  the jurisdiction  of the court here.  This principle applies  to actions in personam.

    Mr.   Chidambaram  very strongly commented against  the judgment  of the High Court for lack of appreciation so  far as  the  English decree is concerned and contended that  the entire claim was in regard to the damages on the ground of a breach  of contract in the matter of performance of  salvage operations,  which  in fact was never performed and as  such question  of any maritime claim acquired therefrom would not arise.   It is on this score that the learned Chief  Justice speaking  for the Bench of the Andhra Pradesh High Court  in the judgment impugned has the following to state:-

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    In  India  there is not much distinction in civil  law system  between maritime law and other branches of law.  The Courts  administer  them  alike.  A perspective of  the  law further  emerges from the reading of the said judgment  that where the statutes are silent the remedy has to be sought by reference  to  the basic principle.  It is the duty  of  the Court  to devise procedural rules by analogy and expedience. It  was  observed  the  action in rem as  seen  above  were resorted by the Court as a device to overcome the difficulty of  personal  service on the defendant by compelling him  to enter  appearance  and  accept service of  summons  and  for furnishing security for the release of the res or any action proceeded  against  the res itself by entering a decree  and executing  the  same  by sale of the  res.   This  practical procedural  device  developed by the Courts with a  view  to render  justice  in accordance with the substantive law  not only  in the cases of collision and salvage but also in case of  other  maritime  liens and claims arising by  reason  of breach of contract for hire of vessel etc.  etc.

    By  reading of the judgment reported in 1993 SC 1014 we are  of  the considered view that the vessel is a  juridical person;   a  maritime  claim  can be  enforced  against  the vessel;   there  is no substantive distinction  between  the Admiralty  Courts  jurisdiction and the jurisdiction  under the common law for execution of a decree of a foreign origin in  view  of  the provisions of Section 44-A  of  the  Code. Apart  from  this, the High Court has jurisdiction  being  a repository  of the power to reach its arm to do justice.  By reading  of  the  judgment we are unable to agree  with  the contention  of  the learned counsel for the respondent  that the  Supreme Court has laid down any law that a ship can  be arrested  only  for  securing a maritime claim  and  not  in execution  of satisfaction of a judgment especially in  view of the statutory provisions of Section 44-A of the Code.

    Mr.   Ashok H.  Desai for the respondent No.1 and being the  decree holder, however, in no uncertain terms contended that  as a matter of fact it is of no significance at all if the judgment be termed to be the judgment in rem or judgment in  personam  especially  in the facts of the  matter  under consideration  having due regard to the domestic law and  in particular  Section  44A  of the Code  of  Civil  Procedure. Before  however,  dealing  with  the same,  a  passage  from encyclopedia  Britannica (Transportation Law) may be of some significance.   Learned authors thereof while referring  the components  of  maritime  law  had the  following  to  state pertaining  the  maritime liens:  a word of caution at  this juncture  ought to be introduced by reason of the  confusion in  populas  between  a  maritime claim  and  maritime  lien whereas  claim cannot but be termed to be a genus-lien is  a particular  species  arising  out of the genus and  the  two terms  namely, claim and lien cannot be identified with each other  so  as  to  accord same meaning.   Let  us,  however, address  ourselves  on maritime lien as is available in  the encyclopedia and the same reads as below:

    Maritime   liens:   although   admiralty  actions  are frequently  brought  in  personam,   against  individual  or corporate  defendants only, the most distinctive feature  of admiralty  practice  is  the   proceeding  in  rem,  against maritime property, that is, a vessel, a cargo, or freight,

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which  in shipping means the compensation to which a carrier is entitled for the carriage of cargo.

    Under American maritime law, the ship is personified to the  extent that it may sometimes be held responsible  under no liability.  The classic example of personification is the compulsory  pilotage  case.  Some state statutes impose  a penalty  on  a shipowner whose vessel fails to take a  pilot when entering or leaving the waters of the state.  Since the pilotage  is thus compulsory, the pilots negligence is  not imputed  to the shipowner.  Nevertheless, the vessel  itself is  charged  with  the  pilots  fault  and  is  immediately impressed  with an inchoate maritime lien that is enforcible in court.

    Maritime  liens can arise not only when the personified ship  is  charged with a maritime tort, such as a  negligent collision or personal injury, but also for salvage services, for general average contributions, and for breach of certain maritime contracts.

Be it noted that there are two attributes to maritime lien: (a) a right to a part of the property in the res;  and (b) a privileged  claim  upon a ship, aircraft or  other  maritime property  in  respect  of services rendered  to,  or  injury caused by that property.  Maritime lien thus attaches to the property in the event the cause of action arises and remains attached.  It is, however, inchoate and very little positive in  value unless it is enforced by an action.  It is a right which  springs from general maritime law and is based on the concept  as if the ship itself has caused the harm, loss  or damage  to others or to their property and this must  itself make  good  that loss.  (See in this context Maritime  Law Christopher Hill,2nd Edn).

    As  regards  the  concept  of  proceeding  in  rem  and proceeding  in personam, it should be understood as  actions being related to the same subject matter and are alternative methods  pertaining  the  same claim and can stand  side  by side.

    In  this  context,  reference may also be made  to  the observations  of this Court in M.V.Elizabeths case  (supra) as stated below:

    48.   Merchant ships of different nationalities travel from  port to port carrying goods or passengers.  They incur liabilities  in the course of their voyage and they  subject themselves  to the jurisdiction of foreign States when  they enter  the  waters of those States.  They are liable  to  be arrested  for the enforcement of maritime claims, or  seized in  execution or satisfaction of judgments in legal  actions arising out of collisions, salvage, loss of life or personal injury,  loss  of  damage to goods and the like.   They  are liable  to be detained or confiscated by the authorities  of foreign  States  for violating their  customs,  regulations, safety  measures, rules of the road, health regulations, and for  other  causes.   The  coastal State  may  exercise  its criminal jurisdiction on board the vessel for the purpose of

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arrest  or investigation in connection with certain  serious crimes.   In the course of an international voyage, a vessel thus  subjects  itself  to the public and  private  laws  of various  countries.   A  ship travelling from port  to  port stays  very briefly in any one port.  A plaintiff seeking to enforce  his  maritime claim against a foreign ship  has  no effective  remedy once it has sailed away and if the foreign owner   has   neither   property    nor   residence   within jurisdiction.   The plaintiff may therefore detain the  ship by  obtaining  an order of attachment whenever it is  feared that  the  ship is likely to slip out of jurisdiction,  thus leaving the plaintiff without any security.

    49.    A   ship  may  be   arrested  (i)   to   acquire jurisdiction;   or (ii) to obtain security for  satisfaction of  the  claim  when decreed;  or (iii) in  execution  of  a decree.   In  the  first  two   cases,  the  court  has  the discretion  to  insist upon security being furnished by  the plaintiff  to  compensate the defendant in the event  of  it being  found that the arrest was wrongful and was sought and obtained  maliciously  or  in bad faith.   The  claimant  is liable  in  damages for wrongful arrest.  This  practice  of insisting upon security being furnished by the party seeking arrest  of the ship is followed in the United States,  Japan and  other  countries.   The reason for the rule is  that  a wrongful  arrest  can cause irreparable loss and damages  to the  shipowner;  and he should in that event be  compensated by  the  arresting  party.   (See Arrest  of  Ships  byHill, Soehring, Hosoi and Helmer, 1985).

    In  Halsburys Laws of England, the nature of action in rem  and the nature of action in personam is stated to be as below:

    310.  Nature of actions in rem and actions in personam. An  action in rem is an action against the ship itself,  but the  view  that if the owners of the vessel do not enter  an appearance  to the suit in order to defend their property no personal  liability  can  be established  against  them  has recently  been questioned.  It has been stated that, if  the defendant enters an appearance, an action in rem becomes, or continues also as, an action in personam;  but the Admiralty jurisdiction  of  the  High Court may now in  all  cases  be invoked  by an action in personam, although this is  subject to certain restrictions in the case of collision and similar cases,  except  where  the defendant submits  or  agrees  to submit to the jurisdiction of the court.

    The  foundation  of  an  action  in  rem  is  the  lien resulting  from  the personal liability of the owner of  the res.   Thus  an action in rem cannot be brought  to  recover damages  for injury caused to a ship by the malicious act of the  master of the defendants ship, or for damage done at a time  when  the ship was in the control of third parties  by reason  of  compulsory requisition.  On the other  hand,  in several  cases,  ships allowed by their owners to be in  the possession  and control of charterers have been successfully proceeded  against  to enforce liens which arose whilst  the ships were in control of such third parties.

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    The  defendant  in  an Admiralty action  in  person  is liable,  as in other actions in the High Court, for the full amount  of  the  plaintiffs proved claim.   Equally  in  an action  in rem a defendant who appears is now liable for the full amount of the judgment even though it exceeds the value of  the res or of the bail provided.  The right to  recovery of  damages  may  however be affected by the  right  of  the defendant to the benefit of statutory provisions relating to limitation of liability.

    The  discussion  above has shown us the  Anglo-American jurisprudence  pertaining  to the admiralty matters and  the distinction between the action in rem and action in personam being within a very narrow margin but before embarking on to a  fuller  analysis of the same, let us for the  time  being transfer  our attention to the domestic law in the matter in issue.  As regards the domestic law Section 44A of the Civil Procedure  Code  may  be  considered as  one  of  the  basic elements  of  domestic  law viz.a.viz.   foreign  judgments. Section 44A of the Code as noted above reads as below:

    Section  44-A.  (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has  been  filed  in  a District Court, the  decree  may  be executed  in India as if it had been passed by the  District Court

    (2)  together  with  the certified copy of  the  decree shall  be  filed  a  certificate from  such  superior  court stating  the  extent, if any, to which the decree  has  been satisfied  or  adjusted and such certificate shall, for  the purposes  of  proceedings under this section, be  conclusive proof of the extent of such satisfaction or adjustment.

    (3)  The  provisions  of Section 47 shall as  from  the filing  of  the  certified copy of the decree apply  to  the proceedings  of  a  District  Court executing  of  any  such decree, if it is shown to the satisfaction of the Court that the  decree falls within any of the exceptions specified  in clauses (a) to (f) of Section 13.

    It  is  on  the basis of the above provision  that  the Respondent  No.1 moved the High Court upon having the decree registered  in  this  country for execution of  the  English Court  decree and it is on this score that Mr.   Chidambaram contended  that Section 44A cannot possibly be said to be of any assistance to the English decree holder.

    Incidentally,  a  plain  reading of Section  44A  would depict the following components:

    (i)  The  decree  must  be of a  superior  court  of  a reciprocating territory;

    (ii) the decree is to be filed in a District Court;

    (iii)  The decree may be executed in India as if it had been passed by the District Court;

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    (iv)  Provisions of Section 47 of the CPC shall  apply, subject to the exceptions specified in clauses (a) to (f) of Section 13;

    (v)  Decree  means  any decree under which a  sum  of money is payable.  (See Explanation II).

    Section  44A  thus  indicates   an  independent  right, conferred  on to a foreign decree holder for enforcement  of its  decree in India.  It is a fresh cause of action and has no  co-relation  with jurisdictional issues.  The factum  of the passing of the decree and the assumption of jurisdiction pertaining  thereto, do not really obstruct the full play of the  provisions  of  Section 44A.  It gives a new  cause  of action irrespective of its original character and as such it cannot  be  termed  to  be   emanating  from  the  admiralty jurisdiction  as  such.   The enforcement claimed is  of  an English  decree and the question is whether it comes  within the ambit of Section 44A or not.  The decree itself need not and  does  not  say that the same pertains to  an  admiralty matter neither it is required under Section 44A of the Code. Though   however   in  the  facts   of  the   matter   under consideration,  the decree has been passed by the High Court of England (a Superior Court) in its Admiralty jurisdiction. Registration  in  this  country, as a decree of  a  superior foreign  Court having reciprocity with this country would by itself be sufficient to bring it within the ambit of Section 44A.   The  conferment of jurisdiction in terms  of  Section 44A,  cannot be attributed to any specific jurisdiction  but an   independent  and  an   enabling  provision  being  made available  to a foreigner in the matter of enforcement of  a foreign decree.

    It  is  in this context that Mr.  Desai  placed  strong reliance on a decision of the Commonwealth of Australia 1980@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ (144)  CLR 565:  Hunt v.  B.P.  Exploration Co.(Libya)  Ltd.@@ JJJJJJJJJJJJJJJ and since the summary of the judgment as is available in the report  would  sub-serve our purpose we need not go  in  for longish narration in regard thereto.  The summary provides:

    A  judgment creditor registered a judgment of the High Court  of  Justice  in  England   under  Section  5  of  the Reciprocal  Enforcement  of  Judgments  Act,  1959(Q).   The judgment  debtor  had  assets in Queensland but he  was  not present  within the jurisdiction and there was no other fact or  circumstance to connect him with the State.  He did  not submit  to the jurisdiction of the Supreme Court.  Section 6 (1)  (c  )  of  the Act enabled Rules of Court  to  be  made providing  for the service or a judgment debtor of notice of the registration of a judgment.  No such rules had been made when the judgment was registered.

    Held  that  the judgment had been  validly  registered. The  Act  was  within  the  legislative  competence  of  the Queensland   Parliament   because  it   provided   for   the registration  of  foreign judgments in a Court of the  State and  their enforcement within the State.  The facts that the parties  to the judgment had no connexion with the State was not  relevant to the validity of the registration.   Further

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the   Act  should  not  be   construed  as  limited  in  its application to persons within the State.

    The second decision again under the same cause title of the   New  Zealand  Supreme  Court   at  Aukland  (Hunt   v. B.P.Exploration  Co.(Libra) Ltd.:  1980 1 NZLR 104) is  also to  the  same  effect.   The  principal  issue  in  the  New Zealands case was to the following effect:

(1).      Does the Court have jurisdiction under the Act to register the English Judgment?  If that issue is decided in favour of Mr. Hunt, then the injunction and the charging order fell to the ground.

    The  issue  however,  was answered by the  New  Zealand Supreme Court upon consideration of the Black-Clawsons case (Black  Clawson International Ltd.  v.  Papierwerke Waldhof- Aschaffenburg:  1975 AC 591) as also the Australian judgment noticed hereinbefore in the manner following:

    The  Act provided a new system for bringing a judgment debtor  in foreign proceedings before the registering Court, whilst preserving his common law defences once he got there.

    I  am left with a statute, clear and unambiguous in its references  to judgment debtor and judgment of a superior Court  of a country to which this Part of this Act applies. Mr.   Hunt clearly comes within those references.  The  fact that the debtor is not within the jurisdiction of this Court was  obviously  not considered important.  In practice,  the Act  would normally be applied to debtors with assets within the  jurisdiction,  although there do not need to be  assets within  the jurisdiction.  See Hospital for Sick Children v. Walt  Disney  Productions Inc (1968) Ch 52, 69, 77;   [1967] All ER 1005, 1011, 1016, which held that an injunction could issue   against  a  corporation   not  within  the   Courts jurisdiction and which did not have assets there at the time of the order.

    I think that, fundamentally, my decision must come down to  this:  On the one hand, is the Mareva jurisdiction  (for want of a better term) merely an instance of the exercise of the Courts general jurisdiction conferred in broad terms by s 16;  or is {118} the Mareva jurisdiction to be regarded as legislating  in an area which should be left to  Parliament? The  two  opposing  points of view are well set out  in  the various  Mareva judgments I have cited on the one hand,  and in the South Australian judgments on the other.

    I  consider  that  this  Court   does  have  a   Mareva jurisdiction.    I  do  not  accept   the  view  that   this jurisdiction  is  in  the nature of legislating in  an  area forbidden  to  the  Courts.   I  am  not  impressed  by  the assumption  of  fearful  authority line of  cases.   There appears  to  have been an old English procedure of  foreign attachment  which provides a perfectly respectable ancestry for  the  procedure.  The fact that this  procedure  accords with that in European countries is, for a New Zeeland Court, a matter of coincidence.

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    The  Court  has  to approach modern problems  with  the flexibility  of modern business.  In former times, as Lawton L.J.   pointed out, it would have been more difficult for  a foreign  debtor  to  take  his assets out  of  the  country. Today,  vast  sums  of  money can be  transferred  from  one country  to another in a matter of seconds as a result of  a phone call or a telex message.  Reputable foreign debtors of course  having  nothing to fear;  the facts of the  reported Mareva  cases  indicate that the jurisdiction is  wholesome; the  sheer  number of Mareva injunctions granted  in  London indicates that the jurisdiction is fulfilling a need.

    Lord  Denning  M.R.   cited with approval in  the  Rasu Maritima  case [1978] QB 644, 660-661;  [1977] 3 All ER 324, 333-334,  the  following statement of practical  reasons  by Kerr J., a highly experienced commercial Judge:

    "A  plaintiff  has what appears to be  an  indisputable claim against a defendant resident outside the jurisdiction, but  with  assets  within the jurisdiction  which  he  could easily  remove, and which the court is satisfied are  liable to  be  removed  unless  an   injunction  is  granted.   The plaintiff  is  then in the following difficulty.  First,  he needs leave to serve the defendant outside the jurisdiction, and  the defendant is then given time to enter an appearance from  the date when he is served, all of which usually takes several  weeks  or even months.  Secondly, it is  only  then that  the  plaintiff  can apply for summary  judgment  under Order 14 with a view to levying execution on the defendants assets  here.   Thirdly, however, on being apprised  of  the proceedings,  the defendant is liable to remove his  assets, thereby  precluding  the plaintiff in advance from  enjoying the  fruits of a judgment which appears irresistible on  the evidence  before the Court.  The defendant can then  largely ignore  the plaintiffs claim in the courts of this  country and  snap  his  fingers at any judgment which may  be  given against  him.  It has always been my understanding that  the purpose and scope of the exercise of this jurisdiction is to deal  with  cases of this nature.  To exercise it on  an  ex parte  basis  in  such  cases   presents  little  danger  or inconvenience  to the defendant.  He is at liberty to  apply to  have  the  injunction discharged at any  time  on  short notice.

    I,  for  one,  do  not always agree  with  the  alleged judicial  law-making of Lord Denning;  on this occasion, I think that he has legitimately spelt out the jurisdiction of the  Court and has up-dated old but useful procedures, aimed at enabling the law to deal with the commercial realities of modern  business.   Accordingly, I am of the view  that  the Mareva  jurisdiction exists in New Zeeland.  I find no cause to  dissent  from  the  view of Quilliam, J.   in  Mosen  v. Donselaar  that  the  Mareva   jurisdiction  exists  in  New Zeeland,  which  view was accepted without argument  in  the other New Zeeland decision.

    The principal consideration is whether BP has given has some  grounds  for  believing that there is a  risk  of  Mr. IIunts New Zeeland assets being removed before the judgment or  award  is  satisfied.   Mr.   Gatenby,  in  one  of  his

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affirmations,  asserted that although the judgment debtor is reputedly  an extremely wealthy and substantial businessman, searches  and  inquiries  conducted by or on behalf  of  the judgment  creditor reveal relatively few assets in countries where  enforcement  can  be   conducted  expeditiously   and economically  through  the  use  of  reciprocal  enforcement legislation  from  which the judgment debtor benefits  other than  only indirectly through the medium of American-  based companies  or  trusts.  He opined that it was apparent  that Mr.   Hunt has the means and the capability to organise  his business  affairs in a sophisticated manner.  This statement is riddled with hearsay and does not state, as required by R 185  of the Code, the grounds for the deponents belief.   I therefore  feel  that  I can take limited  account  of  this statement.   My  concern  at  such a  hearsay  statement  is similar  to  that expressed by Lawton L.J.  in  the  passage cited, although, in its terms, the statement appears to have followed some of Lawton L.J’s guidelines.

    All  in  all, I infer that there is a danger  that  the assets  will be taken out of New Zealand.  The situation  is different  from the usual Mareva type of case where there is not  even  a judgment but merely the issue  of  proceedings. Here,  there is a judgment, albeit one subject to an appeal; a judgment obtained after a lengthy defended hearing and one subject to being set aside under the provisions of the Act.

    All  things  considered,  I  am  of  the  view  on  the authorities, that there was sufficient justification for the issue of the Mareva injunction which will therefore stand as varied,  with  liberty to apply reserved to both parties  to vary  its terms further.  I prefer Lawton L.Js formulations of the criteria, although read in context, Bridge L.J in the Montechhi  case  was not purporting to lay down  a  narrower test.   I  am of the view also that B.P.  is in  a  stronger position  than the average Mareva applicant in that it has a judgment  capable of being registered as a Judgment of  this Court  whereas  normally, all the applicant has is  a  prima facie  case.  I bear in mind Lawton L.Js statement that  if nothing  is  known  about a defendant, that may  be  enough; whilst  in one sense, much is known about Mr.  Hunt, nothing concrete  is known about his willingness to pay the  English Judgment  if his appeal fails.  Had there been some credible statement  to this effect, in even one of the various Courts involved  thus far, I might not have found enough to justify the  Mareva injunction.  However, his silence on the  point, added  to all the other factors, persuades me to sustain the injunction.

    The two decisions noted above in our view deal with the situation  amply  after having considered more or  less  the entire  gamut of judicial precedents.  Barker, Js  judgment in the New Zealand case very lucidly sets out that the court has  to  approach  the modern problem with  some  amount  of flexibility  as  is now being faced in the  modern  business trend.  Flexibility is the virtue of the law courts as Rosco Pound  puts it.  The pedantic approach of the law courts are no longer existing by reason of the global change of outlook in  trade and commerce.  The observations of Barker, J.  and the  findings  thereon  in the New Zealands case  with  the longish  narrations  as  above, depicts our  inclination  to

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concur  with the same, but since issue is slightly different in  the  matter under consideration, we, however, leave  the issue  open,  though  the two decisions as above  cannot  be doubted  in  any way whatsoever and we feel it expedient  to record   that   there   exists    sufficient   reasons   and justification in the submission of Mr.  Desai as regards the invocation  of  jurisdiction under Section 44A of  the  Code upon  reliance  on the two decisions of the New Zealand  and Australian Courts.

    The  observations  of  us,  as   above,  do  find  some concurrence  in  Dicey and Moris on The Conflict  of  Laws Vol.I, 13th Ed.  Page 538 which is to the following effect:

     There  is  no requirement that the judgment debtor  be subject  to the personal jurisdiction of the English  court. Enforcement  is by registration, and not by action, and  the judgment debtor need have no connection with England....."

    In  the  view  as  above,  the  appellants  contention pertaining  to  Section 44A thus cannot be  sustained.   The@@                 JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ apprehension  of there being a horrendous consequences  on@@ JJJJJJJJJJJJJJJJJJJJJJ the  wake  of the observations as above thus cannot  but  be stated to be totally unrealistic and with respect, a figment of imagination.

    Mr.   Chidambaram  by way of an alternative  submission contended  that  assuming  Section  44-A   of  the  Code  is applicable  for  the  execution  of  a  decree  in  personam obtained  from  an  Admiralty  Court in  Britain  but  since Section  44-A is not a self- contained Code for execution of a  decree,  the  same is not exhaustive and the same,  as  a matter  of fact does not displace the common law and it  has to  be read alongwith the well settled principles of  common law  in matters relating to execution of decree for a sum of money.   Strong reliance was placed on the foreign  judgment (Reciprocal Enforcement) Act 1933 and it is on this context, reliance  was placed on the decision in Black Clawsons case (supra).   It has been contended that since Section 44-A was introduced  by  an  amendment  after  the  foreign  judgment (Reciprocal  Enforcement) Act, 1933 it is apparent that  the legislature  did not think it fit to include in Section  44A into  the 1933 Act.  Without dilating much on this score, in our  view  ,  the  decisions  of the  New  Zealand  and  the Australian  Courts  as noticed above, answer the same in  no uncertain  and unambiguous language.  The views expressed by the  English Courts in Black Clawsons case (supra) has been expressly dissented from in both the decisions noticed above and we do feel it expedient to reiterate the views expressed as  above more so by reason of the fact that the 1933 Act on which   Black  Clawson  was   decided  expressly  saved  the applicability  of the common law though to a limited  extent by and under Section 8(3) of the Act.

    As   noticed  above  Section   44A  is  an  independent provision  enabling a set of litigants whose litigation  has come  to  an  end  by way of a foreign  decree  and  who  is desirous of enforcement of the same:  It is an authorisation given  to  the foreign judgments and as noticed  above,  the

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Section  is  replete  with various conditions  and  as  such independently  of  any other common law rights, an  enabling provision  for a foreign decree holder to execute a  foreign decree  in  this country, has been engrafted on  to  statute book to wit:  Section 44A of the Code.

    Mr.   Chidambaram next contended that there are certain fundamental principles of execution in India and referred to a  judgment  of  Sir Ashutosh Mukherji in the case  of  Begg Dunlop  & Co.  v.  Jagannath Marvari (ILR 39 Calcutta  104). The  fundamental  principles  as  recorded  therein  and  as strongly contended by Mr.  Chidambaram runs as follows:

    i.   A decree may be executed either by the Court which passed  it  or  by the Court to which it has been  sent  for execution.  (Sec.38 CPC)

    ii.  A decree may be sent to another Court of competent jurisdiction;   the  Court shall be deemed to be a Court  of competent   jurisdiction,   if  such    Court   would   have jurisdiction  to  try the suit where the decree was  passed. (Section 39 (1) & (3) CPC).

    iii. Even after sending the decree to another Court for execution, the original Court does not lose jurisdiction over the matter.

    Mr.   Chidambaram  in  suapport of  his  contention  of Fundamental  Principles  has  also taken  us  through  the provisions  of  Sections 16, 17, 19 and 20 of the  CP  Code. Admittedly  and  without much dialation Section 20  overlaps Section 19 (see in this context Mullas Civil Procedure Code 15th  Ed.  Vol.  I page 240).  The submissions pertaining to the  fundamental  principles of execution does not,  however warrant,  in our view, a fuller and detailed discussion save to  note that Section 44A is a departure from the scheme  of execution of domestic decree.  By virtue of Section 44A (3), all  defences  under  Section 13 (a) to (f) which  reads  as under are available to a defendant.:

    13.   (S.14) A foreign judgment shall be conclusive as to  any matter thereby directly adjudicated upon between the same  parties  or between parties under whom they or any  of them claim litigating under the same title except

    (a)  where  it  has not been pronounced by a  Court  of competent jurisdiction;

    (b)  where  it has not been given on the merits of  the case;

    (c)  where it appears on the face of the proceedings to be  founded  on an incorrect view of international law or  a refusal to recognise the law of India in cases in which such law is applicable;

    (d)  where  the proceedings in which the  judgment  was obtained are opposed to natural justice;

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(e) where it has been obtained by fraud;

    (f)  where  it sustains a claim founded on a breach  of any law in force in India.

    As  a  matter  of fact this is a scheme  alien  to  the scheme of domestic execution as is provided under Section 39 (3)  of  the Code.  The scheme under the latter  section  is completely  a different scheme wherein the transferee  Court must  be otherwise competent to assume jurisdiction and  the general  rule or the principle that one cannot go behind the decree  is a permissible proposition of law having reference to  Section  39  (3) of the Code.  Section  44A  however  is having  a  in-built scheme of execution which is not in  any comparable  situation with the scheme in terms of Section 39 (3).   One can thus from the above conclude that whereas the domestic  law, execution scheme is available under  Sections 37,  38,  39, 41 and 42, Section 44A depicts  an  altogether different  scheme  for  enforcement   of  foreign  judgments through  Indian courts.  Reference in this context may  also be  made to the provisions as contained in Order 21 Rule  22 of  the  Code which expressly provide that in the  event  of their  being an application for execution and the same  been taken out beyond a period of two years after the date of the decree,  there is existing a mandatory obligation to serve a notice  to  show  cause  against   the  execution.   Such  a requirement of the decree being more than 2 years old is not mentioned  as regards the provisions of execution of  decree filed  under Section 44A.  This is a new introduction in the 1976  Code  and in our view substantiates the reasonings  as above  and supports the contention of Mr.  Desai as  regards two separate and independent Schemes for execution.

    On  the  wake of the aforesaid, it can thus  be  safely concluded  that  while it is true that action in rem and  in personam  have lost much of significance in the present  day world but in the facts of the matter under consideration, we are  not  really concerned therewith and as such we are  not expressing  any  definite opinion in regard thereto  suffice however,  to  record  that  we  are  inclined  to  lend  our concurrence  with the views expressed by the Australian  and the  New Zealand courts apropos judgment in personam and in rem as noticed above.

    In fine, the legal fiction created by Section 44A makes the  Andhra  Pradesh High Court, the Court which passed  the decree and as such competency of the High Court to entertain the  execution proceeding cannot be doubted in any way.

    In the premises above-said, we do not find any merit in the  Appeals  before us and thus the same are liable  to  be dismissed  subject to the liberty reserved to the appellants as indicated herein below.

    This order of dismissal however, would not preclude the appellant  herein, to obtain release of the attached ship on furnishing  a  Bank  guarantee of a  nationalised  Bank  for suitable amount to the satisfaction of the Registrar (Judl.) of  the  Andhra  Pradesh High Court, pending  the  execution proceedings.   The amount of Bank Guarantee may be fixed  by the  Registrar  (Judl.) after hearing the parties  or  their advocates.   Furnishing  of such Bank Guarantee will  be  in

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addition to the undertakings required to be furnished by the appellant  pursuant to the order of the High Court which  is subject  matter  of  civil  appeal arising out  of  SLP  (C) No.18616  of  1999.  Furnishing of such Bank Guarantee  will also  be  without  prejudice to the  appellants  rights  and contentions  regarding  the  merits of  the  decree-holders claim  qua  the arrested ship.  Once such Bank Guarantee  is furnished  by  the appellant and requisite  undertakings  as earlier  ordered by the High Court are filed, the ship  will be  released  from attachment and will be permitted to  sail out  of  the port of Vishakhapatnam.  In case the  execution petition ultimately succeeds on merits against the appellant it  will be open to Respondent No.1 decree-holder to  encash the Bank Guarantee amount towards its claim in the execution proceedings.  Subject to the aforesaid modification both the appeals stand dismissed with no order as to costs in each of them.