Case: M.V.A.L. Quamar Vs. Tsavliris Salvage(International)Ltd.&amp;Ors

Respondent No. 2 before this court has suffered a foreign decree passed by the High Court of Justice, Queens Bench Division, Admiralty Court, England in monetary terms by way of damages for breach of contract for salvaging and towing the vessel "M.V.Al Tabish" alleged to be renamed as "M.V.Al Quamar". Respondent No. 1-company before us is the decree-holder. It had filed the suit in the Admiralty Court in England alleging that pursuant to a contract of salvage entered into by respondent No. 1 with respondent No. 2, it had mobilised its tug for salvaging and towing the aforesaid vessel which had met rough weather in the 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 breach of 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 Admiralty Court, England.2. After getting notice of the filing of the suit, respondent No. 2 subsequently remained ex parte and a decree for damages for breach of salvage contract was passed by the English Court on 2.11.1998. It was held by the court that respondent No. 2 was liable in the sum of US $ 265,0000 together with interest @ 9.51% p.a. from 1.6.1994. It was also ordered that copies of the order 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 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 available 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 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 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 Pradesh, as a successor to the Chartered High Court of Madras.5. Respondent No. 1 decree-holder having come to know about the anchoring of the said ship at Visakhapatnam filed an execution petition invoking Section 44-A of 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 of that it had obtained a foreign money decree from competent Admiralty Court against respondent No. 2, who was the owner of the said res M.V. Al Tabish.6. In the said execution petition the res in question, namely, M.V. Al 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 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, 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. radesh High Court is not a competent Court which can entertain such execution proceedings under Section 44-A of the C.P.C.

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