Holding

Section 44‑A confers an independent right to enforce foreign decrees in India and, notwithstanding Section 112(2), the CPC applies to admiralty matters, making the execution petition maintainable before the Andhra Pradesh High Court.

Summary

The Supreme Court considered an execution petition filed in the Andhra Pradesh High Court under Section 44‑A of the Civil Procedure Code to enforce a money decree passed by the English Admiralty Court against the owner of the vessel M.V. Al Quamar. The appellant argued that Section 44‑A could not be invoked because Section 112(2) of the CPC excludes the Code in admiralty matters and that the English decree was in personam, not in rem, so the ship could not be arrested. The Court held that Section 44‑A creates an independent right to enforce foreign decrees in India, that Section 112(2) only bars the provisions of Part VII dealing with appeals and does not remove the applicability of the CPC to admiralty cases, and that the Andhra Pradesh High Court, as a successor to the Madras High Court, has competent admiralty jurisdiction to entertain the execution proceeding. Consequently, the execution petition was maintainable and the appeals were dismissed, with liberty granted to the appellant to secure a bank guarantee for the ship’s release.

Issues considered

The applicability of Section 44‑A CPC to the enforcement of a foreign admiralty decree.
Whether Section 112(2) CPC bars the operation of the CPC in admiralty or vice‑admiralty matters.
Whether the Andhra Pradesh High Court has jurisdiction to execute a foreign decree against a vessel.
The distinction between a decree in personam and a decree in rem for purposes of ship arrest.

Legislation cited

Code of Civil Procedure, 1908s. 112(1), s. 112(2), s. 13, s. 140, s. 15, s. 21 Rule 10, s. 38, s. 39, s. 4, s. 44-A, s. 47, s. Order XXI Rule 58

Subjects

Admiralty jurisdictionSection 44-A CPCForeign decree enforcementExecution of foreign judgmentMaritime lienIn rem vs in personamSection 112 CPCAndhra Pradesh High Court

Judgment

A M.V. AL. QUAMAR
v.
TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. AND ORS.

AUGUST 17, 2000

B [S.B. MAJMUDAR AND UMESH C. BANERJEE, JJ.]

Admiralty law :

Admiralty Courts Act, 1890-Section 15-Civil Procedure Code, 1908-
Sections 44-A, 112(2) and 140-Execution Petition-For execution offoreign
c judgment passed in admiralty jurisdiction-Maintainability of-Applicability
of Section 44-A-Held, Section 44-A of CPC indicates an independent right,
conferred on to a foreign decree holder for enforcement of its decree in lndia-
The factum of the passing of the decree and the assumption of jurisdiction
pertaining thereto, do not obstruct the full play of the provisions of the Sec-
D lion-Section 112(2) of CPC does not render the Code completely inapplicable
to admiralty cases.

High Court of Justice Queen's Bench Division, Admiralty Court,
passed a decree in favour of respondent No. 1 who had claimed damages
for repudiation of an LOF salvage contract, against respondent No. 2, the
E owner of the petitioner/vessel. When the vessel was found anchored in
Vishakhapatnam Port, falling within the jurisdiction of Andhra Pradesh
High Court, respondent No. 1 filed an Execution Petition before Single
Judge of the High Court under Section 15 of the Admiralty Courts Act and
Section 44-A r/w. Order 21 Rule 10 of Civil Procedure Code, for execution
F of the decree.

During pendency of the Execution Petition, decree holder prayed for
interim order of warrant of arrest/attachment against the vessel. Single
Judge granted interim relief on a prima facie view that the Execution
Petition could be filed in the High Court which had otherwise original
G admiralty jurisdiction.

Appellant filed petition to vacate the interim order on the ground
that since the vessel was transferred bonafide to "Q" for valuable consid-
eration, who was not party to the original suit, the vessel could not be
H attached for execution of decree against respondent No. 2, the original
440
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. 441
owner. Single Judge ordered early hearing of the Execution Petition and A
continuance of the interim order. Division Bench held that the Execution
Petition was maintainable and directed the petition to be heard on merits.

In appeal to this court appellant contented that Section 44-A CPC
could not be invoked for enforcement of foreign judgment in the High
Court because in view of Section 112(2) CPC, the Code cannot be made B
applicable to any matter of criminal or admiralty or vice admiralty juris-
diction; and that since the judgment of the English Court is judgment in
personam, the Execution Petition for the arrest of the vessel and subse-
quent order thereon is not maintainable since arrest of a ship operates in
rem and not in personam; and that a vessel may be arrested for obtaining C
satisfaction of the claim or the execution of a decree in rem especially in a
maritime action having maritime lien, only when a decree in rem is passed,
and therefore, the decree holder has to proceed only against the judgment
debtor and not against the vessel. Appellant alternatively contended that
assuming section 44-A CPC is applicable for the execution of a decree in
personam obtained from an Admiralty Court in Britain but since Section D
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 along with the well settled principles of common
law in matters relating to execution of decree for a sum of money. The
respondent contended that it is of no significance if the judgment be termed E
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 44-A CPC.

Dismissing the appeals, the Court

HELD : Per Banerjee, J. F

1.1. The Admiralty jurisdiction of the Andhra Pradesh High Court
does not stand 'frozen' or 'atrophied' in any way whatsoever. The legal
fiction created by Section 44-A makes the Andhra Pradesh High Court, the
Court which passed the decree and as such the competency of the High
G
Court to entertain the execution proceeding cannot be doubted in any way.
[449-F-G; 474-G]
M. V. Elisabeth and Ors. v. Harwan Investment and Trading Private Ltd.
Hanoekarr House, Swatontapeth, Vasco-De Gama, Goa, etc., [1993) Suppl. 2
sec 433, referred to. H
442 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 1.2. The High Court has rightly decided the applicability of the Code
of Civil Procedure even in Admiralty jurisrin:tion. If the intent of the
legislation was to do away with the applicability of the provisions of the
Code of Civil Procedure, in terms of Section 112(2) or the Code, then in
that event question of continuance of Section 140 of the Code would not
have arisen. In accordance with the salutary principle of interpretation
B and one of the golden canon of statutory interpretation being that the
latter provision shall prevail over the earlier provision and in the event of
the Adaptation of Laws Order deemed it expedient to exclude applicability
of the Civil Procedure Code in terms of Section 112(2), question of incor-
porating Section 140 or continuing therewith and in any event in the Civil
c Procedure Code, would not have arisen. The insertion of Section 140 in the
Code is clear and unambiguous to the effect that Section 112(2) does not
render the Code completely inapplicable to admiralty cases.
[452-E-F; 453-G; 454-A]

The Bombay and Persia Steam Navigation Company Ltd. v. Shepherd
D and Haji Ismail Hossein, ILR (1888) XII Bombay 237, approved.

State of Ukraine v. Elitarious Ltd.; Jolly George Verihese and Am: v.
The Bank of Cochin, AIR (1980) SC 470 and Videsh Sanchar Nigam Ltd. v.
M.P. Capitan Kud and Ors., (1996] 7 SCC 127, referred to.

E Halsbury~· Laws of England (4th Edition Vol. I), referred to.

1.3. Section 4 being a general provision which excludes the operation
of the CPC in specific instances as mentioned therein and since exclusion
of admiralty jurisdiction is not specifically mentioned, the applicability of
CPC is not barred, since there is no such general exclusion. (457-D-E]
F
2.1. Section 44-A of the Civil Procedure Code indicates an independ-
ent right, conferred on 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
G full play of the provisions of Section 44-A. 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 44-A or not. The decree itself need not and does not
H say that the same pertains to an admiralty matter; neither it is required
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. 443
under Section 44-A of the Code. Though, however, in the facts of the A
matter under considerat!on, the decree has been passed by tbe High Court
of England (a Superi9r 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 44-A. The conferment of jurisdiction in terms of Section 44-A,
B
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. [466-C-G]

Hunt v. B.P. Exploration Co. (Libya) Ltd., [1980] 144 CLR 565; Huntv.
B.P. Exploration Co. (Libya) Ltd., [1980] 1 NZLR 104, referred to. c
'The Conflict of Laws" Vol.I 13th Edition by Dicey and Moris, referred
to.

2.2. 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, D
claim and lien cannot be identified with each other so as to accord same
meaning. 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 arise ad remains attached. It is inchoate and very E
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. [462-C-E; 463-A-C]
F
Maritime Law Christopher Hill, 2nd Edition, referred to.

2.3. As regards the concept of proceeding in term 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. [463-C] G
The City of Mecca [1881] 6 P.D. 106; Alletta [1974] 1 Lloyed's Law
Reports40 'Sylt' [1991] l Lloyd's Law Reports 240; 'Despina G.K.' [1983] 1
All ER 1, referred to.

World Tanker Carrier Corporation v. SNP Shipping Services Private H
444 SUPREME COURT REPORTS (2000) SUPP. 2 S.C.R.
A Ltd. & Anr., [1998] 5 SCC 310, referred to.

3.1. Section 44-A is an independent provisions 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 the Section is replete with various conditions
B and as such independent of any other common·law rights, and 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 44-A of the
Code. [472-E-G]

3.2. By virtue of Section 44-A(3), all defences under Section 13(a) to
c (0 are available to a defendant. Section 44-A depicts an altogether differ-
ent scheme for enforcement of foreign judgments through Indian Courts.
[473-D; 474-C]

Begg Dunlop & Co. v. Jagannath Marvari, ILR 39 Calcutta 104,
D referred to.

Civil Procedure Code, 15th Edition Vol. I by Mulla, referred to.

Per Majmudar, J. (Concurring)

E 1.1. What is excluded by Section 112(2) CPC by the phrase "nothing
contained herein" is the sub-topic dealing with "appeals to the Supreme
Court". It is not made applicable by sub-section (2) of Section 112 to admi-
ralty or vice-admiralty jurisdiction, amongst others. In short, the bar of
Section 112(2) operates within and is confined to the question of "appeals to
the Supreme Court". Neither can it go backward to any other Parts from I-
F VI nor can it go forward and touch upon any other subsequent provisions
found in parts VIII to XI of the C.P.C. It is to be noted that Section 47
dealing with execution proceedings is found in Part-II. It is miles away from
Part-VII dealing with "appeals wherein is found Section 112(2). This aspect
can be further highlighted from having a look at Section 4 which is a gen-
G era! provision excluding the operation of the entire C.P.C. to special juris-
dictions or situations as contemplated by sub-sections (1) and (2) thereof,
No general exception or exclusion of the entire body of the Code to admi-
ralty jurisdiction is found. (480-H; 481-A-C; 481-E]

1.2. The Admiralty Court, being the Andhra Pradesh High Court,
H could have under these circumstances validly entertained the suit and
M.V. AL. QUAMAR "· TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 445
would have been perfectly competent to pass a decree in rem against the A
ship as well as the decree in personam against its owner Defendant No. 2 if
it had submitted to its jurisdiction for getting the ship bailed out. Such suit
is perfectly maintainable in the Andhra Pradesh High Court in exercise of
its admiralty jurisdiction. [487-C-D]

M. V. Elisabeth and Ors. v. Harwan Investment and Trading Private Ltd., B
Hanoekarr House, Swatontapeth, Vasco-De Gamma, Goa, etc., [1993] Suppl.
2 sec 433, referred to.

1.3. It cannot be said in the background of the fact situation that the
Andhra Pradesh High Court, in exercise of its admiralty jurisdiction, was
not competent to even originally entertain such a suit in which a foreign c
Court had passed the decree which is sought to be executed before it. Both
the English Admiralty Court, which is, admittedly a Court of competent
jurisdicdon, as well as the Andhra Pradesh High Court, being a corre-
sponding Court of competent admiralty jurisdiction, could not entertain
such a suit in the first instance but could equally be competent to execute D
such a decree of Admiralty Court. [488-D-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4578 of 2000.

From the Judgment and Order dated 22.11.99 of the Andhra Pradesh
High Court in O.S.A. No. 65 of 1999. E
WITH

Civil Appeal No. 4579 of 2000.

P. Chidambaram, Ashok H. Desai, V. Kotwal, S. Dave, A. Sen, Ms. Bina
Gupta, G.K. Benerjee, Venketesh Dhond, R.N. Karanjawala, Ms. Ruby Singh F
Ahuja, Mrs. Manik Karanjawala, R. Rahim and Kailash Vasdev for the appear-
ing parties.

The Judgment of the Court was delivered by

BANERJEE, J. Leave granted in both the SLPs. G
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 H
I
446 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A High Court of Justice Queen's 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 :i.ppeals 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
B 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 Queen's Bench Division Admiralty Court in an action by the first
respondent against the second respondent herein claiming damages for repu-
C diation 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
TAB ITH.

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
D vessel together with Hull: tackle: Engines: Machinery equipments stores etc.
The learned Single Judge of the Andhra Pradesh High Court on 15th Septem-
J:er; 1999 giallB:i GO i1!er:i:n are:-aspiaye::J. :brm aprima 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
E 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
c
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
F being, not a party to the judgment, question of 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
G 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
H above moved the Appellate Forum and the Appellate Court while dismissing
M.V. AL. QUAMAR v. TSAVLIRJS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 447

the appeal observed as below:- A
"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 B
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 execu-
tion petition infructous and, therefore, the interim order ought not be C
vacated before the disposal of the E.P. also appeals to us. Considera-
tions 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.
D
The contention of the learned counsel for the appellant that continu-
ance 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. E

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 F
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 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 crew's wages subject to the proof of G
actual expenditure being furnished by the appellant to the first re-
spondent in respect of all the items.

The O.S.A. is dismissed subject to the above direction. No costs. H
448 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A We consider it a fit to be heard by Division Bench."

In terms of the order as above, the Execution Petition itself was placed
before the Bench of the learned Chief Justice wherein upon recording concur-
rence as regards the maintainability of the petition it was observed that the
Execution Petition be heard on merits and hence the Special Leave Petition
B 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
C 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. I, a brief backdrop of the admiralty
jurisdiction of the country may be a useful introduction: The three erstwhile
D 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
E Courts of Admiralty (India) Act, 1891, the admiralty jurisdiction on the three
High Courts noticed above can be fairly traced. This special Admiralty juris-
diction 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,
F 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 prac-
tice 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
G
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
H Andhra State Act of 1953 (Act 30 of 1953) certain territories from erstwhile
M.V. AL. QUAMAR v. TSAVLJRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.l 449
State of Madras were included in the State of Andhra Pradesh and the Court A
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 B
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. Hanvan
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:
"Assuming that the admiralty powers of the High Courts in India are c
limited to what had been derived from the Colonial Courts of Admi-
ralty 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 D
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, E
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." F
There is thus no scope to conclude that the Admiralty jurisdiction of the
Andhra Pradesh High Court stands 'frozen' or 'atrophied' in any way what-
soever.

The discussion above pertaining to the admiralty jurisdiction of the
G
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 H
450 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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
B 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:

"112. (1) Nothing contained in this Code shall be deemed-
c (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
D 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 or-
ders and decrees of Prize Courts."

Incidentally, Section 112(1)(a) and (b) stand substituted by the Adapta-
E tion 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 Independ-
ence will obviously clarify the situation. The Parallel Codes and the present
F Section 112 thus runs:

Code of 1882 Code of 1908 Present Section 112
616. Nothing herein 112.(1) Nothing contained 112. (1) Nothing contained
contained shall be under- in this Code shall be in this Code shall be
stood- deemed- deemed-
G (a) to bar the full and (a) to bar the full and un- (a) to affect the powers of
unqualified exercise of Her qualified exercise of His the Supreme Court under
Majesty's pleasure in Majesty's pleasure in re- article 136 or any other pro-
recei ving or rejecting ceiving or rejecting appeals vision of the Constitution,
appeals to Her Majesty in to His Majesty in Council, or
Council, or Otherwise or otherwise howsoever, or
H howsoever, or
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 451

(b) to interfere with any (b) to interfere with any (b) .to interfere with any A
rules made by the Judicial rules made by the Judicial rules made by the Supreme
Committee of the Privy Committee of the Privy Court, and for the time be-
Council, and for the time Council, and for the time ing in force, for the presen-
being in force, for the pres- being in force, for the pres- talion of appeals to that
entation of appeals to Her entation of appeals to His Court, or their conduct be-
Majesty in Council or their Majesty in Council, or their fore that Court.
conduct before the said Ju- Conduct before the said Ju- B
dicial Committee. dicial Committee.

[And] ~othing in this Chap- (2) Nothing herein con- (2) Nothing herein con-
ter applies to any matter of tained applies to any matter tained applies to any matter
criminal or admiralty of criminal or admiralty or of criminal or admiralty
or vice-admiralty jurisdic-
tion, or to appeals from
vice-admiralty jurisdiction,
or to appeals from orders
or vice-admiralty jurisdic-
tion, or to appeals from or-
c
orders and decrees of Prize and decrees of Prize ders and decrees of Prize
Courts. Courts. Courts.

This comparative analysis of the provisions of the Code 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 D
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 E
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 Halsbury' s Laws of England
(4th Edn. Vol.- I ) paragraph 309, the following has been stated to be the
jurisdiction of the Prize Courts: F

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
G
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 Queens's
Bench Division and taken by the Admiralty Court. The same applies
to every limitation action, and generally to causes and matters involv-
ing the exercise of the High Court's admiralty jurisdiction, or its H
452 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A jurisdiction as a prize court.

The word Prize has also been dealt with in Halsbury's 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
B Naval prize Acts 1864 to 1916, as amended by any subsequent enact- ....
ment, and has all such jurisdiction on the high seas and throughout Her
Majesty's dominions and in every place where Her Majesty has juris-
diction 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
c High Court's 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
D 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
E 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 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
F 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. Code of 1908/Code of 1976

645-A, In any Admiralty or Vice- 140.(l) In any Admiralty or Vice-
G Admiralty cause of salvage, towage Admiralty cause of salvage, towage
or collision, the Court whether it be or collision, the court whether it be
exercising its original or its appellate exercising its original or its appellate
jurisdiction, may, if it thinks fit, and jurisdiction, may, if it thinks fit, and
upon request of either party to such shall, upon request of either party to
H cause shall, summon to its assistance, such cause, summon to its assistance,
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.l 453
in such manner as the Court may [by in such manner as it may direct or as A
rule, from time to time,] direct, two may be prescribed, two competent
competent assessors, and such assessors; and such assessors shall
assessors shall attend and assist attend and assist accordingly.
accordingly.

Every such assessor shall receive such (2) Every such assessor shall receive B
... fees for his attendance as [the Court such fees for his attendance, to be
by rule prescribes, Such fees] shall be paid by such of the parties as the Court
paid by such of the parties as the Court may direct or as may be Prescribed.
[in each case] may direct.

It is in this context a rather old decision of the Bombay High Court seem
c
to be apposite. The learned Single Judge of the High Court in the case of The
Bombay and Persia 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 D
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
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 E
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 jurisdic-
tion. Though these rules do not apparently contemplate a suit in rem
and in personam being combined, they do not expressly or by neces- F
sary 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 G
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 Pro-
cedure 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 H
454 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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
B
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
C 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:

D "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:-
E
"............ India is now a signatory to this covenant and Article Sl(c)
of the Constitution obligates the state to "foster respect for Inter-
national Law and treaty obligations in the dealings of organised
peoples with one another". Even so until the Municipal Law is
F 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 Interna-
tional Conventional Law must go through the process of trans-
formation into the Municipal Law before the international treaty
can become an internal Law........... "
G
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 Inter-
national Law has gone through "the process of transformation into
H Municipal Law". Thus, we conclude that in order to bring a case within
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 455
the mischiefof Order 7 Rule ll(d) of the Code of Civil Procedure, the A
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
B
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.
Mukperji."

On the wake of the aforesaid, we are unable to record our concurrence
pertaining to the exclusion of the Code in Admiralty jurisdiction. Significantly, c
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 D
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. E

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 F
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 G
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.

H
456 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A 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.

B 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
c cannot but be said to be subscribing to a view contra to that canvassed before
us by the Appellant.

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
D Code deal with appe~ls from original decrees, Sections 109 - 112 deal with
appeals to the S·1preme 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
E complete ban, then and in that event the words used in sub-section (1) in the
normal course of events w'ould 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
F 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
G 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 com-
pletely 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 ·
H Court and Section 645-A (presently Section 140) shows the same. We record
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 457
our concurrence with the observation of the Bombay High Court in 12 Bombay A
(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 asses-
B
sors to give their estimate of the anchoring position and the probable involve-
ment 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.
c
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 D
provision which excludes the operation of the CP Code in specific instances
as mentioned therein and since exclusion of admiralty jurisdiction is not spe-
cifically mentioned, we are unable to sustain the submissions of Mr.
Chidambaram, in any event, since there is no such general exclusion.

In that view of the matter, question of having any concurrence with the E
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. F

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 G
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.O. 106. Jessel M.R. in the decision under reference
~as~: H
458 SUPREME COURT REPORTS (2000) SUPP. 2 S.C.R.
A 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
B 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 a&,ainst 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
c 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
D 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
E 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
F 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 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 trans-
G ferred 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
H captain, in order to secure payment, by lien perhaps, of ultimate
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 459

damages; but whether that can be carried out to proceedings in rem I A
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.

B
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 c
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
D
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."
E
The decision in The City of Mecca (supra) was, lately followed in the
'Alletta' (1974 1 Llyod's Law Reports 40) and 'Sylt' (1991 1 Llyod's Law
Reports 240). The decision of the Queen's 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. F

Mr. Chidambaram, has also placed strong reliance on the Brussels Con-
vention, 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 mari-
time lien. On this score, however, we can usefully note the observations of this G
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 H
460 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A liabilities of the carrier far more justly and equitably than the Hague
Rules so as to correct the tilt in the latter in favour 11f 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 relat-
ing to the Arrest of Sea-going· Ships, Brussels, 1952. Nor has India
B
adopted the Brussels Conventions of 1952 on civil and penal jurisdic-
tion 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
c international trade. Although these conventions have not been adopted
by legislation, the principles incorporated in the conventions are them-
selves 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
D 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
E 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
F 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. Admittedlv. tJ.e
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 v.
G 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
H
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 461
subrr.its to the jurisdiction of the court here. This principle applies to A
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, B
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:-

"In India there is not much distinction in civil law system between
c
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 D
"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
E
same by sale of the res. This practical procedural device developed by
the Courts with a view to render justice in accordance with the sub-
stantive 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."
F

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 Court's jurisdiction and the jurisdiction under G
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 H
462 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.

A 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,
B 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 Ci vii Procedure. Before, however, dealing with the same, a passage
c from Encyclopaedia Britannica (Transportation Law) may be of some signifi-
cance. 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
D 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 encyclopaedia and the same reads as below:

"Maritime liens: although admiralty actions are frequently brought in
personam, against individual or corporate defendants only, the most
E
distinctive feature of admiralty practice is the proceeding in rem,
against maritime property, that is, a vessel, a cargo, or "freight", which
in shipping means the compensation to which a carrier is entitled for
the carriage of cargo.

F Under American maritime law, the ship is personified to the
extent that it may sometimes be held responsible under no liahility. 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 pilot's negligence is not imputed
G to the shipowner. Nevertheless, the vessel itself is charged with the
pilot's 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
H charged with a maritime tort, such as a negligent collision or personal
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 463

injury, but also for salvage services, for general average contributions, A
and for breach of certain maritime contracts.

Be it noted that there are two attributes to maritime lien: (a) a nght 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 B
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' C
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.
D
In this context, reference may also be made to the observations of this
Court in M. V. Elisabeth s 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 E
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
F
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 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 G
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 H
464 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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
B 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
c 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 by Hill, Soehring, Hosoi
and Helmer, 1985)".

D In Halsbury 's 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
E their property no personal liability can be established against them has
recently been ques(ioned. It has been stated that, ifthe 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
F 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
G be brought to recover damages for injury caused to a ship by the
malicious act of the masterof the defendant's ship, or for damage done
at a time when tlie 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 char-
H terers have been successfully proceeded against to enforce liens which
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 465
arose whilst the ships were in control of such third parties. A

The defendant in an Admiralty action in person is liable, as in
other actions in the High Court, for the full amount of the plaintiff's
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 B
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
c
embarking on to a fuller analysis of the same, let us for the time being transfer
our attention to the domestic law in tjle 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: D
"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.
E
(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.
F
(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 execut-
ing 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." G
It is on the basis of the above provision that the Respondent No.l 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 con-
tended that Section 44A cannot possibly be said to be of any assistance to the
English decree holder. H
466 SUPREME COURT REPORTS (2000) SUPP. 2 S.C.R.
A Incidentally, a plain reading of Section 44A would depict the following
components:

(i) The decree must be of a superior Court of a reciprocating terri-
tory;

B (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;

(iv) Provisions of Section 47 of the CPC shall apply, subject to the
c 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
D 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 enforce-
E ment 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
F 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 confer-
ment 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.
G
It is in this context that Mr. Desai placed strong reliance on a decision
of the Commonwealth of Australia 1980 (144) CLR 565: Hunt v. B.P. Explo-
ration Co.( Libya) Ltd. 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
H narration in regard thereto. The summary provides:
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 467
"A judgment creditor registered a judgment of the High Court of A
Justice in England under Section 5 of the Reciprocal Enforcement of
Judgments Act, 1959(Q). The judgment debtor had assets in Queens-
land 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
B
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 C
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 the Act should not be construed
as limited in its application to persons within the State."
D
The second decision again under the same cause title of the New Zealand
Supreme Court at Aukland (Hunt v. 8.P.Exploration Co.( Libra) Ltd., (1980) l
NZLR 104 is also to the same effect. The principal issue in the New Zealand's
case was to the following effect:

"(!). Does the Court have jurisdictfon under the Act to register the E
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-Clawson 's case (Black Clawson International
F
Ltd. v. Papierwerke Waldhof-Aschaffenburg, (1975) AC 591 as also the Aus-
tralian 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. G
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 H
468 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Act would normally be applied to debtors with assets within the
jurisdiction, although there do not need to be assets within the juris-
diction. 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 be issue against a corporation not within the
Court's jurisdiction and which did not have assets there at the time of
B
the order.

I think that, fundamentally, my decision must come down to this: On

c the one hand, is the Mareva jurisdiction (for want of a better term)
merely an instance of the exercise of the Court's 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 Parlia-
ment? 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
D Australian judgments on the other.

I consider that this Court does have a Mareva jurisdiction. ~ do not
accept the view that this jurisdiction is in the nature of legisfating 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
E
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 Zealand Court,
a matter of coincidence.

F 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
G to fear; the facts of the reported Mareva cases indicate that the juris-
diction is wholesome; the sheer number ofMareva injunctions granted
in London indicates that the jurisdiction is fulfilling a need.

Lord Denning M.R. cited with approval in the Rasu Maritima case
H [1978] QB 644, 660-661; [1977] 3 All ER 324, 333-334, the following
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 469
statement of practical reasons by Kerr J., a highly experienced com- A
mercial 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
B
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 de-
fendant is then given time to enter an appearance from the date
when he is served, all of which usually talces several weeks or
even months. Secondly, it is only then that the plaintiff can apply c
for summary judgment under Order 14 with a view to levying
execution on the defendant's assets here. Thirdly, however, on
being apprised of the proceedings, the defendant is liable to re-
move his assets, thereby precluding the plaintiff in advance from
enjoying the fruits of a judgment which appears irresistible on
D
the evidence before the Court. The defendant can then largely
ignore the plaintiff's 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 E
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- F
malcing" 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
Zealand. I find no cause to dissent from the view of Quilliam, J. G
in Mosen v. Donselaar that the Marevajurisdiction exists in New
Zealand, which view was accepted without argument in the other
New Zealand decision.

········································································································ H
470 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A The principal consideration is whether BP has given some grounds
for believing that there is a risk of Mr. Hunt's New Zealand assets
being removed before the judgment or award is satisfied. Mr.
Gatenby, in one of his affirmations, asserted that although the
judgment debtor is reputedly an extremely wealthy and substan-
tial businessman, searches and inquiries conducted by or on be-
B
half of the judgment cred°itor reveal relatively few assets in coun-
tries where enforcement can be conducted expeditiously and eco-
nomically through the use of reciprocal enforcement legislation
from which the judgment debtor benefits other than only indi-
rectly through the medium of American- based companies or
c trusts. He opined that it was apparent that Mr. Hunt has the means
and the capability to organise his business affairs in a sophisti-
cated manner. This statement is riddled with hearsay and does
not state, as required by R 185 of the Code, the grounds for the
deponent' s belief. I therefore feel that I can take limited account
D of this statement. My concern at such a hearsay statement is simi-
lar 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.

E
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
F 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
G there was sufficient justification for the issue of the Mareva in-
junction which will therefore stand as varied, with liberty to ap-
ply reserved to both parties to vary its terms further. I prefer
Lawton L.J' s formulations of the criteria, although read in con-
text, Bridge L.J in the Montechhi case was not purporting to lay
H down a narrower test. I am of the view also that B.P. is in a stronger
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 471
position than the average Mareva applicant in that it has a judg- A
ment 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.J' s 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
B
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." c
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, J's judgment in the New Zealand case very lucidly sets out that the
court has to approach the modem problem with some amount of flexibility as
is now being faced in the modem business trend. Flexibility is the virtue of the D
law courts as Rosco Pound puts it. The pedantic approach of the Jaw 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
Zealand's case with the longish narrations as above, depicts our inclination to
concur with the same, but since issue is slightly different in the matter under E
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
F
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:
G
"There is no requirement that the judgment debtor be subject to the
personal jurisdiction of the English court. Enforcement is by registra-
tion, and not by action, and the judgment debtor need have no connec-
tion with England ..... "

In the view as above, the appellants' contention pertaining to H
472 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A Section 44A thus cannot be sustained. The apprehension of there being
a 'horrendous consequences' on 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
B 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
c 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 Clawson' s 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
D 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 Clawson 's case (supra) has been expressly dissented
from in both the decisions noticed above and we do feel it expedient to reiterate
E 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
F who is desirous of enforcement of the same: It is an authorisation given to the
foreign judgments and as noticed above, the 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 iil
this country, has been engrafted on to statute book to wit: Section 44A of the
G 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
H contended by Mr. Chidambaram runs as follows:
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 473
i. A decree may be executed either by the Court which passed it A
or by the Court to which it has been sent for execution. (Sec.38
CPC)

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

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

Mr. Chidambaram in support of his contention of 'Fundamental
c
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 Mulla's 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 D
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 E
thereby directly adjudicated upon between the same parties or between
partie~ 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 p
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 G
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;

(e) where it has been obtained by fraud; H
474 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A (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 complete! y a different scheme wherein the transferee Court
B 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
C 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. Refer-
ence 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 there being
an application for execution and the same been taken out beyond a period of
D 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 pro-
visions of execution of decree filed under Section 44A. This is a new intro-
duction in the 1976 Code and in our view substantiates the reasonings as above
E and supports the contention of Mr. Desai as regards two separate and independ-
ent 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
F 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
G
Pradesh High Court, the Court which passed the decree and as such compe-
tency 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
H before us and thus the same are liable to be dismissed subject to the liberty

r
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.] 475
reserved to the appellants as indicated herein below. A

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 (Judi.)
of the Andhra Pradesh High Court, pending the execution proceedings. The
amount of Bank Guarantee may be fixed by the Registrar (Judi.) after hearing B
the parties or their advocates. Furnishing of such Bank Guarantee will be in
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.18616of1999. Furnishing of such Bank Guarantee will also
be without prejudice to the appellants rights and contentions regarding the c
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. l decree-holder to encash the Bank Guarantee D
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.

S.B. MAJMUDAR, J. I have gone through the erudite and exhaustive E
judgment prepared by learned Brother, U.C. Banerjee, J., in these appeals. I
respectfully agree with the conclusion reached by him. However, as the matter
at issue has wide repercussions regarding the scope and ambit of admiralty
jurisdiction vested in the Chartered High Courts or their successor High Courts,
like the High Court of Andhra Pradesh, I deem it fit to record my reasons for

-
concurring with the decision arrived at by learned brother. F

At the outset, admitted and well-established facts deserve to be noted in
order to appreciate the contours of controversy posed for our consideration.
They can be enumerated as under :

l. Respondent No. 2 before this Court has suffered a foreign decree G
passed by the High Court of Justice, Queen's Bench Division, Admiralty Court,
England in monetary terms by way of damages for breach of contract for
savaging and towing the vessel "M. V. Al Tabish" alleged to be renamed as "M. V.
Al Quamar". Respondent No. I-company before us is the decree-holder. It had
filed the suit in the Admiralty Court in England alleging that pursuant to a H
476 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A contract of salvage entered into by Respondent No. 1 with Respondent No. 2,
it had mobilized its tug for salvaging and towing the aforesaid vessel which had
met rough weather in high seas. Its further case against Respondent No. 2 is
that though the plaintiff was prepared to render services as per the contract it
was prevented from rendering the same by Respondent No. 2 which committed
breach of contract and hence this suit in the Admiralty Court for damages for
B breach for contract pertaining to salvaging the said ship. As the alleged breach
of contract for salvage had admittedly taken place in London, the suit was filed
in the Admir;;lty Court, England.

2. After getting notice of the filing of the suit, Respondent No. 2 sub-
c sequently remained ex-parte and a decree for damages for breach of salvage
contract was passed by the English Court on 02.11.1998. It was held by that
Court that Respondent No. 2 was liable in the sum of US $ 265,000 together
with interest@ 9.51% p.a. from 01.06.1994. It was also ordered that copies
of the orders and judgment were to be served on Respondent No. 2 at their
address in Cyprus and the order was to become final and binding after seven
D days of service.

3. Admittedly the vessel in question for salvaging the same, the contract
was entered into by Respondent No. 1 with Respondent No. 2, was not avail-
able for being proceeded against in the English Court and only Respondent No.
2 was joined as a party to the litigation. Consequently, the aforesaid money
E
decree passed by the English Admiralty Court remained a decree in Personam
against Respondent No. 2.

4. The vessel in question having crossed the high seas for discharging
the cargo carried by it ultimately was found to have anchored in Visakhapatnam
F Port in Andhra Pradesh. Thus, admittedly, the res in question was found located
in the territorial waters of Andhra Pradesh within the territorial jurisdiction of
Admiralty Court of Andhra Pradesh, being the High Court of Andhra Pr·:'~""
as a successor to the Chartered High Court of Madras.

5. Respondent No. 1 decree-holder havillg come to know about the
G anchoring of the said ship at Visakhapatnam filed an Execution Petition invok-
ing Section 44-Aof the Civil Procedure Code (for short "C.P.C.") for arrest and
detention of the ship and for recovering the decretal amount from Respondent
No. 2 judgment-debtor on the ground that it had obtained a foreign money
decree from competent Admiralty Court against Respondent No. 2, who was
H the owner of the said res M. V. Al Tabish.
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.] 477
6. In the said execution petition the res in question, namely, M. V. Al A
Tabish was joined as a party opponent as it was required by the decree-holder
to be attached and sold in execution of its decree against Respondent No. 2.

7. The master of the ship M. V. Al Quamar contested the execution
proceedings and raised a preliminary objection about their maintainability in
the Andhra Pradesh High Court. The Andhra Pradesh High Court, by its B
impugned judgment, took the view that the execution petition is maintainable
and directed that evidence be led as per Order XXI, Rule 58 of the C.P.C. for
deciding the question whether the vessel M. V. Al Quamar really belongs to the
judgment-debtor - Respondent No. 2 or to a stranger, third party purchaser, who
is said to have renamed vessel M. V. Al Tabish as M. V. Al Quamar and, therefore, c
according to the appellant-master of the said vessel it has no longer remained
the property of the judgment-debtor - Respondent No. 2. The resolution of this
question on evidence is pending before the High Court.

8. It is not in dispute between the parties that in the aforesaid execution
proceedings pending in the Andhra Pradesh High Court on its Admiralty side, D
original judgment-debtor of English Court who has suffered decree from the
Admiralty Court of England though served has not thought it fit to appear
before the Andhra Pradesh High Court and to contest these proceedings.

9. By an ad interim order of the Andhra Pradesh High Court, the ship
in question has been attached and is lying detained in Visakhapatnam Port E
awaiting further orders of the Court.

10. The High Court of Andhra Pradesh, in exercise of its Admiralty
jurisdiction, falls within the definition of "District Court", on a conjoint reading
of Section 44-A and Section 2(4) as it is the principal Court of original
F
Admiralty jurisdiction as contra-distinguished from its appellate or revisional
jurisdiction.

In the light of the aforesaid well-established facts on record, the short question
arises for our consideration whether the aforesaid execution proceedings are
maintainable before the High Court of Andhra Pradesh as an executing Court G
for enforcing the foreign decree passed by the English Admiralty Court by
attachment and sale of the vessel in question.

Mr. P. Chidambaram, learned senior counsel for the appellant, placed two
submissions for our consideration in support of these appeals. The same are as
under: H
478 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 1. Invocation of Section 44-A of the C.P.C. by Respondent No. 1
decree-holder of a decree passed by the Admiralty Court is miscon-
ceived as the said provision gets excluded by Section 112(2) of the
C.P.C.

2. In the alternative, it is contended that even assuming that the said
B provision applies on the facts on the present case, the Andhra Pradesh
High Court is not a competent Court which can entertain such execu-
tion proceedings under Section 44-A of the C.P.C.

We have to resolve these controversies in the light of the aforesaid admitted
and well-established facts on record. It is made clear that if such proceedings
c are maintainable, then the moot question which arises is whether the attached
ship M. V. Al Quamar really belongs to Respondent No. 2 judgment-debtor or
it belongs to a third party, who is alleged to be the purchaser of the said original
ship - M. V. Al Tabish. It admittedly belonged to Respondent No. 2 at the time
when the suit was filed in the English Admiralty Court by Respondent No. 1
on 11.10.1994 and, pending those proceedings, Respondent No. 2 is alleged to
D have sold the said vessel by a Memorandum of Agreement dated 04.02.1997
for a sum of US $ 2,515,000 to a third party and the master of which ship -
M. V. Al Quamar is contesting the execution proceedings, will have to be
resolved and the evidence which is being recorded by the executing Court at
present has also to be looked into. We are not concerned with this factual
controversy. All that was argued before us and which is to be decided is about
E
the maintainability of the execution petition on demurer, meaning thereby,
assuming that the averments in the execution petition are true. That is how Mr.
P. Chidambaram, learned senior counsel for the master of the vessel and Mr.
F.S. Nariman and Mr. Ashok H. Desai, learned senior counsels for Respondent
No. 1 decree-holder have addressed us and sought appropriate decision in the
F present proceedings.

I may now proceed to deal with the aforesaid two contentions pressed
in service by Mr. P. Chidambaram, learned senior counsel for the appellant in
support of these appeals.

CONTENTION NO. 1 :
G
So far as applicability of Section 44-A of the C.P.C. is concerned, we
may usefully refer to the said provision for appreciating its correct scope. The
same is already reproduced in the judgment of brother Banerjee, J.

A mere glance at that provision, read with relevant explanations, shows
H that before it is invoked by any decree-holder, he must satisfy the following
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.) 479
conditions. A

l. A Decree-holder who seeks execution must be armed with a money
decree passed by any of the superior Court of any reciprocating territory, being
any foreign country or territory which the Central Government may, by noti-
fication in official gazette, has declared to be a reciprocating territory for the
purpose of the Section. B
2. Such an execution petition can be entertained by the executing Court
in India being the District Court that will be clothed with the legal fiction as
if the said foreign decree was passed by itself and whose aid and assistance are
required for executing such a decree.
c
3. Such a decree can be put up for execution before a District Court in
India being the principal Civil Court of original jurisdiction and which will
include the local limits of the original civil jurisdiction of a High Court.

4. Once such execution petition is filed before the appropriate District
Court the entire machinery of Section 4 7 for execution of Indian decrees would D
automatically get attracted.

S. In such execution proceedings, the judgment-debtor of a foreign Court
decree will be entitled to satisfy the executing Court in India that the foreign
decree cannot be executed against him as it is hit by any of the exceptions
specified in Clauses (a) to (f) of Section 13 of the C.P.C. E

The first grievance voiced by Mr. P. Chidambaram, learned senior counsel for
the appellant, is to the effect that Section 44-A itself gets excluded by Section
112(2) of the C.P.C. The said provision reads as under :

"122(2) Nothing herein contained applies to any matter of criminal or F
admiralty or vice-admiralty jurisdiction, or to appeals from orders and
' decrees of Prize Courts."

Now if this provision is read in isolation it may project a situation wherein the
entire Code may get excluded for governing any matter of criminal or admiralty
or vice-admiralty jurisdiction. However, a closer look at the said provision G
exposes the hollowness of the aforesaid contention. We have to keep in view
the fact that the C.P.C. is divided into various parts. Section 112 occurs in Part
VII dealing with appeals. Sections 96-99A deal with one sub-topic - appeals
from original decrees. There is a second sub-topic - appeals from appellate
decrees. They are dealt with by Sections 101-103. The third sub-topic in the
said Part VII deals with appeals from orders. They are dealt with by Sections H
480 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 104-106. Then falls another sub-topic - general provisions relating to appeals.
They are dealt with by Sections 107-108 and lastly falls the sub-topic - appeals
to the Supreme Court. This sub-topic - appeals to the Supreme Court is dealt
with by Section 109-112. It is pertinent to note that erstwhile Section 110
dealing with 'value of subject-matter in the Supreme Court appeals' is deleted.
Section 111 dealing with 'bar of certain appeals' is also deleted. Section
B 111-A dealing with 'appeals to Federal Court' is also deleted and then remains
Section 112. Sub-sections (I) and (2) thereof earlier extracted in the judgment
of brother Banerjee, J. bears repetition.

"ll2. Savings. - (!)Nothing contained in this Code shall be deemed-

c (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.
D (

(2) 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."

Mr. P. Chidambaram, learned senior counsel for the appellant, is prima facie
E right when he contends that the word "herein" is of wide import and may
exclude the gamut of the entire Civil Procedure Code including Section 44-A
so far as admiralty or vice-admiralty jurisdiction is concerned. However, it is
pertinent to note that while sub-section (1) of Section 112 provides for exclud-
ing the entire Code in connection with the topics covered by sub-clause (a) &
(b) of sub-section (1) thereof pertaining to powers of the Supreme Court in
F appeals. Sub-section (2) of Section 112 conspicuously does not contain the
same phraseology i.e. "nothing contained in this Code" instead it uses the
phraseology "nothing herein contained", meaning thereby, nothing contained
in the sub-topic "appeals to the Supreme Court" would apply to admiralty or
vice-admiralty jurisdiction amongst others and nothing more. The said provi-
sion cannot get telescoped into any other part of the C.P.C. nor can it travel
G
beyond the limited scope and periphery of its operation as indicated in the said
provision. It has .to be kept in view that Part VII deals with 'appeals', which
is the genus of all the aforesaid sub-topics in Part VII, that dealt with the species
i.e., different types of appeals before different Courts in the hierarchy of civil
proceedings. It is in this connection that Section 112(2) has to be read. It must,
H therefore, be held that what is excluded by Section 112(2) by the phrase
M.V. AL. QUl\MAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.] 481
"nothing contained herein" is the sub-topic dealing with "appeals to the Su- A
preme Court". It is not made applicable by sub-section (2) of Section 112 to
admiralty or vice-admiralty jurisdiction, amongst others. In short, the bar of
Section 112(2) operates within and is confined to the question of "appeals to
the Supreme Court" neither can it go backward to any other Parts from I-VI
nor can it go forward and touch upon any other subsequent provisions found
in Parts VIII to XI of the C.P.C. It is to be noted that Section 47 dealing with B
execution proceedings is found in Part-II. It is miles away from Part-VII
dealing with "appeals" wherein is found Section 112(2). This aspect can be
further highlighted from having a look at Section 4 which is a general provision
excluding the operation of the entire C.P.C. to special jurisdictions or situations
as contemplated by sub-sections ( 1) and (2) thereof, which read as under :
c
"4. Savings. - (1) In the absence of any specific provision to the
contrary, nothing in this Code shall be deemed to limit or otherwise
affect any special or local law now in force or any special jurisdiction
or power conferred, or any special form of procedure prescribed, by
or under any other law for the time being in force. D
(2) In particular and without prejudice to the generality of the propo-
sition contained in sub-section (!), nothing in this Code shall be
deemed to limit or otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in force for the
recovery of rent of agricultural land from the produce of such land." E

We do not find any such general exception or exclusion of the entire body of
Code of admiralty jurisdiction. We may also turn to Section 140 which is found
in Part-XI dealing with "miscellaneous provisions". The said Section 140 also
bears repetition. It provides as under :
F
"140. Assessors in causes of salvage, etc. - (1) In any admiralty or vice-
admiralty cause of salvage, towage or collision, the Court, whether it
be exercising its original or its appellate jurisdiction, may, if it thinks
fit, 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, G
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 parities as the Court may direct or as may be
prescribed." H
482 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A This Section clearly indicates that it is not the legislative intent to exclude the
applicability of the C.P.C. to admiralty jurisdiction whether original or appel-
late. Consequently, the first submission of Mr. P. Chidambaram, learned senior
counsel for the appellant, has to be rejected.

CONTENTION NO. 2 :
B
So far as this contention is concerned, it has to be kept in view that basic
conditions of Section 44-A have clearly been satisfied by the decree-holder,
Respondent No. I, who seeks to execute foreign decree of Admiralty Court
against Respondent No. 2 who has suffered the decree in personam from the
English Admiralty Court. Certified copy of the decree is already filed in the
c execution proceedings. It is, admittedly, a decree passed by the superior Court
of Admiralty in England. That Court is situated in reciprocating territory as
United Kingdom has been duly notified by the Central Government as a
reciprocating territory. However, Mr. P. Chidambaram, learned senior counsel
for the appellant, submitted that even if that is so, on a combined reading of
D Section 44-A and Section 39 sub-sections (1) and (3) of the C.P.C., it must be
held that before such execution proceedings can be entertained by the Andhra
Pradesh High Court in exercise of its admiralty jurisdiction as successor to the
Chartered High Court of Madras, it must be shown that it was a competent
Court which could have entertained such a suit of Respondent No. 1 against
Respondent Nos. 2 seeking decree in personam against it. He submitted that
E neither the foreign decree-holder Respondent No. I nor foreign judgment-
debtor Respondent No. 2 are Indian Nationals. None of them has any connec-
tion with India as residents or having any immovable property in India and no
part of cause of action has also arisen in India in favour of Respondent No. I
against Respondent No. 2. That the foreign decree of appellate Court is a
F personal decree against Respondent No. 2 who is alleged to have committed
breach of contract in London and hence the Admiralty Court's jurisdiction was
invoked in England because the suit filed by Respondent No. 1 against Re-
spondent No. 2 was pertaining to the breach of salvage contract regarding
Respondent No. 2's ship M. V. Al Tabish which, on the date of the filing of the
suit in English Admiralty Court, allegedly belonged to Respondent No. 2.
G According to Mr. P. Chidambaram, learned senior counsel for the appellant, as
no part of cause of action in this case had arisen in India and, especially within
the local territorial limits of the Andhra Pradesh High Court, even though it
may be acting as an Admiralty Court such a suit could not have been filed by
Respondent No. I personally against Respondent No. 2 in the Andhra Pradesh
H High Court. If that is so, the Andhra Pradesh High Court is not competent
M.V. AL. QUAMAR v. TSAVL!R!S SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR. J.] 483
to execute such a decree by resorting to the legal fiction created by Section A
44-A by treating such a foreign decree of English Admiralty Court as if it was
a decree passed by the Andhra Pradesh Admiralty Court. In order to buttress
this contention Mr. P. Chidambaram, learned senior counsel for the appellant,
gave an extreme example. He placed a hypothetical illustration for our consid-
eration. An English national files a suit against another English national for
B
breach of contract regarding purchase of movable or immovable property in
England. A competent English Court passes a decree at common law by way
of damages for breach of contract by the foreign defendant and in favour of
foreign plaintiff. If both the decree-holder as well as the judgment-debtor
happen to take a trip to India as tourists and if the English decree-holder tourist
finds his English judgment-debtor to be possessed of costly wrist-watch or c
other costly movable property in Agra when both of them are on a sight seeing
tour of Taj Mahal at Agra can execution of such a foreign decree be enforced
in the District Court at Agra? Mr. P. Chidambaram, learned senior counsel for
the appellant, posed this question to himself. He submitted that a superficial
reading of Section 44-A may entitle such a foreign national English decree-
D
holder armed with certified copy of the decree to file execution proceedings
for recovering his money claim against the foreign judgment-debtor in the
District Court at Agra. He submitted that such execution petition would be
travesty of justice and would reflect an absurd situation which cannot be
countenanced on a conjoint reading of Section 44-A and Sections 38, 39 & 44
of the C.P.C. E
Such an extreme contention canvassed by Mr. P. Chidambaram, learned
senior counsel for the appellant, does not really call for any serious discussion
in the present proceedings as we are not concerned with such a hypothetical
situation. But the situation is not so alarming as wrongly assumed, with respect,
F
by Mr. P. Chidambaram. When we turn to Section 38, we find that a decree
may be executed either by the Court which passed it, or by the Court to which
it is sent for execution. This Section by itself refers to decree passed by Indian
Courts against defendants who may be within the territorial jurisdiction of the
competent Civil Court in the light of the correct place for suing in such Courts
as laid down by Sections 15 to 20 of the C.P.C. If the nature of the suit against G
the defendant falls within any of these provisions then, admittedly, such a
decree can be executed by the same Court which passed the decree being a
competent Court but it can be sent by that competent Court to any other court
for execution if the defendant has properties within the territorial jurisdiction
of any other competent Court in India and that is what Section 39( I) provides. H
484 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A The said section reads as under :

"39. Tran~fer of decree. - (I) The Court which passed a decree may,
on the application of the decree-holder, send it for execution to another
Court of competent jurisdiction,

B (a) If the person against whom the decree is passed actually and
voluntarily resides or carries on business, or personally works for
gain, within the local limits of the jurisdiction of such other
Court, or

(b) if such person has not property within the local limits of the
c jurisdiction of the Court which passed the decree sufficient to
satisfy such decree and has property within the local limits of the
jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the Court
D
which passed it, or

(d) if the Court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should be
executed by such other Court.
E
(2) The Court which passed a decree may of its own motion send it for
execution to any subordinate Court of competent jurisdiction.

(3) For the purposes of this section, a Court shall be deemed to be a
Court of competent jurisdiction if, at the time of making the application
F for the transfer of decree to it, such court would have jurisdiction to
try the suit in which such decree was passed."

Sub-section (3) of Section 39 provid~s that such a transferee Court, admittedly
in India, shall be deemed to be a court competent to execute such a transferred
decree if, at the time of making the application for transfer of decrees, it is
G shown to have jurisdiction to try the suit in which such decree was passed. It
must at once be noted that Section 38 refers to executing Courts in India which
have themselves passed the decrees in suits which were within their jurisdiction
and were admittedly, therefore, competent Courts. Such decrees passed by
competent Courts in India can also be executed by getting the decrees trans-
H ferred to other competent Courts in India provided the requirements of Section
M.V. AL. QUAMAR '" TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.] 485
39(1) read with sub-section (3) are satisfied. Therefore, the transferee Court in A
India must be a competent Court, which at the time of making an application
for transfer of decree by the decree-holder, should be shown to have jurisdic-
tion to pass such a decree even originally. It is easy to visualise that, this
requirement of a transferee Court in India which gets jurisdiction qua such
execution proceedings only on transfer from competent executing Court which
B
has passed the decree in India is conspicuously absent, when we turn to Section
44-A. It nowhere lays down that the District Court in which _decree of any
superior Court of a foreign territory is submitted for execution by a foreign
decree-holder must be a Court which could have been competent to pass such
a decree if in the first instance such a suit was filed by a foreign national against
another foreign national in India. The second distinguishing feature is that c
Section 44-A permits the foreign judgment debtor to challenge the foreign
decree even before the executing Court being the District Court in India on any
of the grounds mentioned in Clauses (a) to (f) of Section 13. A transferee Court
under Section 39 which is called upon to execute an Indian decree passed by
a competent Indian Court against the judgment-debtor cannot permit the
D
judgment-debtor to go beyond the decree sought to be executed by such
transferee Court. But apart from these two distinguishing features and even
proceeding on the lines as suggested by Mr. P. Chidambaram, learned senior
counsel for the appellant, that in any case the District Court in India which is
called upon to execute a foreign decree by treating it as if it was passed by itself
should, in the first instance, be shown to be competent to pass such a decree, E
the result would be the same on the facts of the present case.

It is no doubt true that the foreign decree, which is sought to be executed,
is a money decree passed by the English Admiralty Court in favour of Re-
spondent No. 1 against Respondent No. 2. That decree is in personam for the
F
simple reason that, at the time when the suit was filed in England, the res,
namely, M. V. Al Tabish was not within the territorial waters of English Admi-
ralty Court. Therefore, the plaintiff Respondent No. 1 had to sue only Respond-
ent No. 2 in personam for recovering damages for breach of salvage contract
entered into between them. The said decree has become final between the
parties. It is also axiomatic that if the res, namely, the vessel M. V. Al Tabish G
was available within the territorial waters of English Admiralty Court it would
have also become co-defendant along with its owner Respondent No. 2 and
then the decree would have a decree in rem against the vessel but if Respodnent
No. 2 had submitted to the jurisdiction of English Admiralty Court, the pro-
ceeding would have been converted into proceedings in personam and then a
H
486 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A decree would have been passed also in personam against Defendant No. 2
along with decree in rem against the vessel. If that had happened there would
have been no difficulty for the English decree-holder in pursing the vessel M. V.
Al Tabish and lo get his decree executed against the vessel wherever it went
during the course of its voyage over the high seas and its ultimate anchorage
in any port for the discharge or reloading of cargo in the course of maritime
B
business. The contract of salvage of such vessel and any proceedings in con-
nection with the execution of sue~ contract or its breach raising claim for
damages would remain in the realm of maritime claim legitimately within the
jurisdiction of Admiralty Courts. In the absence of a decree in rem against the
vessel whose salvage contract have given rise to the present maritime claim,
c the decree passed by competent Admiralty Court in England though remains
a decree in personam could validly be executed by English Admiralty Court
itself.

Once decree of foreign Superior Court is sought to be executed under
Section 44-A of the C.P.C. as if it is the decree of the Indian Court executing
D the same, no further question would survive regarding competence of such
executing Court. Still let us co'lsider in the alternative question of competence
of the Andhra Pradesh Admiralty Court for entertaining such a suit in its
inception. Then the question arises whether the Andhra Pradesh High Court
which is, admittedly, having admiralty jurisdiction as a successor to the Char-
E tered High Court of Madras could have entertained such a suit in the first
instance. We have, therefore, to visualise a situation by way of flashback as if
a suit had to be filed in the first instance by Respondent No. 1 against Respond-
ent No. 2 in admiralty jurisdiction of the Andhra Pradesh High Court in 1994
instead of in an English Court provided the res i.e. the ship was found at that
time in the territorial waters of Andhra Pradesh. Then Respondent No. 1 could
F
have filed a suit i11 personam against Defendant No. 2 because, admittedly, it
was alleged to have committed breach of salvage contract in connection with
the sea-going vessel M. V. Al Tabish which is a res and which by chance was
found within the territorial waters of the port of Visakhapatnam in 1994. Such
as 'res' would have admittedly remained within the original admiralty jurisdic- ~
G tion of the Andhra Pradesh High Court. Respondent No. 1 thus could have
validly filed a suit praying for decree in rem against the vessel M. V. Al Tabish
making it as Defendant No. I along with its owner Defendant No. 2. What the
English Court could do in connection with the suit validly filed on 11.10.1994
by Respondent No. I against Respondent No. 2 would have been validly done
by the Andhra Pradesh High Court if the vessel, Respondent No. 1 and Re-
H
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, J.] 487
spondent No. 2 were all within the territorial admiralty jurisdiction of the A
Andhra Pradesh High Court at that time. It is the case of Respondent No. 1
decree-holder that pending the said proceedings, illegally and by way of a
fictitious transaction, the said vessel is alleged to have been transferred by
Respondent No. 2 in favour of M. V. Al Quamar and the ship's name is changed
to M. V. Al Quamar from M. V. Al Tabish though in fact it still remains the
B
property of Respondent No. 2. That is a question which is still to be considered
by the Andhra Pradesh High Court in the execution proceedings and for which
we are not called upon at this stage to make any observations. But the fact
remains that in such settings of the dispute between the parties such a suit could
have been validly filed in the Andhra Pradesh High Court's admiralty jurisdic-
tion if the vessel was in its territorial waters on 11.10.1994. In such a contin- c
gency suit could then have been validily filed by plaintiff-Respondent No. 1
against defendant-Respondent No. 2 and it could have validly joined the vessel
also as Defendant No. 2. The Admiralty Court, being the Andhra Pradesh High
Court, could have under these circumstances validly entertained the suit and
would have been perfectly competent to pass a decree in rem against the ship
D
as well as the decree in personam against its owner Defendant No. 2 if it had

- submitted to its jurisdiction for getting the ship bailed out. Such suit is perfectly
maintainable in the Andhra Pradesh High Court in exercise of its admiralty
jurisdiction as already decided by a Bench of this Court in the case of M. V.
Elisabeth and Others v. Harwan Investment and Trading Pvt. Ltd., Hanoekar
House, Swatontapeth, Vasco-De-Gama, Goa etc., (1993] Supp 2 SCC 433. E
That was a case in which the res in question was found within the territorial
waters of Visakhapatnam Port. Neither the plaintiff nor the defendant had any
nexus with the territorial limits of the Andhra Pradesh. The cause of action had
also not arisen within Andhra Pradesh still because of the presence of res in
territorial waters of the Andhra Pradesh, it was held by this Court that the F
Andhra Pradesh High Court as Admiralty Court had perfect jurisdiction to
arrest the ship being sued as Defendant No. 1 before judgment. In the light of
the aforesaid settled legal position, therefore, it must be held that once the
vessel - M. V. Al Tabish came within the territorial waters of the Andhra Pradesh,
the Andhra Pradesh High Court, as Admiralty Court, had complete jurisdiction
to even initially entertain the suit against not only the ship but against its owner, G
that is alleged to have committed breach of salvage contract qua that ship. If
such a suit was maintainable in the inception before the Andhra Pradesh High
Court in its admiralty jurisdiction, then at the executing stage when Section
44-A was invoked for executing a similar decree passed by competent superior
Court in England in exercise of admiralty jurisdiction, such a decree could H
488 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A validly be executed by invoking the aid of corresponding Admiralty Court
being the Andhra Pradesh High Court when the res was already within its
jurisdiction. Consequently even reading Section 39(3) with Section 44-A, there
is no escape from the conclusion that the time when execution petition was
moved before the Andhra Pradesh High Court by even treating it as a transferee
Court it can be said to be perfectly competent to entertain such a suit even in
B
its inception against the ship as well as its alleged owner and to resolve the
dispute between Respondent No. I and Respondent No. 2. It has to be kept in
view that if the ship in question which is arrested at Visakhapatnam had sailed
out of the territorial waters of Andhra Pradesh then the Andhra Pradesh High
Court would have lost its jurisdiction to entertain such a suit or the execution
c proceedings for executing the decree of foreign Court. But once it was within
its territorial waters, the ship could have been validly subjected to such a suit
not only against itself but against its owner. Whether the subsequent purchaser
is a genuine purchaser of the ship and whether the sale transaction is hit by any
other provision of law and whether the ship still remains the property of
D Respondent No. 2 could have been validly examined in such a suit if it was
originally filed before the Andhra Pradesh High Court in its admiralty juris-
diction. Under these circumstances, it cannot be said in the background of this
fact situation that the Andhra Pradesh High Court, in exercise of its admiralty
jurisdiction, was not competent to even originally entertain such a suit in which
a foreign Court had passed the decree which is sought to be executed before
E it. Both the English Admiralty Court, which is, admittedly, a Court of compe-
tent jurisdiction, as well as the Andhra Pradesh High Court, being a corre-
sponding Court of competent admiralty jurisdiction, could not only entertain
such a suit in the first instance but could equally be competent to execute such
a decree of Admiralty Court.
F The aforesaid analysis of Sections 44-A, 38 and 39 in the light of the fact
situation which is well-established on record furnishes a perfect answer to the
imaginary apprehension voiced by Mr. P. Chidambaram, learned senior counsel
for the appellant, and to the alleged absurd situation, which, according to him,
may result if such execution petitions are entertained under Section 44-A for
G execution of foreign decrees passed between two absolute foreigners who have
neither any immovable property nor place of residence in India. It is easy to
visualise that a foreign English tourist who might have suffered a money decree
against another foreign tourist in England may not be able to execute his decree
in the District Court at Agra in India only because his judgment debtor who
is a mere tourist is found to be possessed of some valuable property like
H
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [MAJMUDAR, l.l 489
jewellery or wrist-watch etc., as neither wrist-watch nor the jewellery nor even A
any valuable carpet possessed by a foreign judgment-debtor can give jurisdic-
tion to the District Court, Agra to even in the first instance entertain such a suit
by a foreign national against another foreign national but has no moorings in
India and suit against whom does not fall within the fore-corners of Sections
15-20 of the C.P.C. subject, of course, to one rider i.e. such foreign national
B
had not submitted to the jurisdiction of the District Court, Agra. If he had, then
the District Court, Agra could have entertained such a suit in the first instance.
Neither the wrist-watch nor any other movable valuable properties of the
foreign judgment debtor can be equated with a res covered by a maritime claim
which can be validly subjected to adjudication for a decree in rem by a
competent Admiralty Court within whose territorial jurisdiction the res is four.d c
to be available for being subjected to arrest and detention either pending such
Admiralty suit or in execution of the decree passed by a competent Admiralty
Court, whether local or foreign, as the case may be, subject to such foreign
Court being a Court in reciprocal territory as laid down by Section 44-A of the
C.P.C. The District Court, Agra could not have passed a decree in rem against D
wrist-watch or carpet treating it to be a res. Consequently, the apprehension
voiced by Mr. P. Chidambaram, learned senior counsel for the appellant, about
such extraordinary, unimaginable or horrendous situation would remain nearly
imaginary. It is only in the light of the present facts we hold that Section
44-A was rightly invoked by Respondent No. 1 against Respondent No. 2 and
also against the vessel M. V. Al Tabish, which, according to Respondent No. l, E
is renamed as M. V. Al Quamar and, which according to him, still belongs to
its judgment-debtor Respondent No. 2. Whether the said contention is right or
wrong will have to be examined by the High Court under Order XXI Rule 58
of the C.P.C., as noted earlier. We say nothing on this factual aspect. All that
we ho!<.! in the present proceedings is to the effect that the execution petition F
on demurer was rightly held by the High Court as maintainable before it. The
second contention of Mr. P. Chidambaram, learned senior counsel for the
appellant, therefore, is also devoid of any merits and stands rejected.

The appeals, therefore, fall subject to the liberty already given in the
judgment of brother Banerjee, J. to the appellant to take away the ship subject G
to furnishing of suitable bank guarantee of a nationalised bank as indicated
therein.

K.K.T. Appeals dismissed.