Page 32 - Insurance Times June 2024

on a con joint reading of Section 44-A and Sections 38, 39 & under consideration having due regard to the domestic law
44 of the CPC. and in particular Section 44A of the Code of Civil Procedure.

The decree holder prayed for an Interlocutory Order to issue "Section 44A of the code enables a foreign decree holder
a warrant of arrest against the vessel together with Hull: to execute a foreign decree in this country," a division bench
tackle: Engines: Machinery equipments stores etc. The comprising Justices S B Majmudar and Umesh C Banerjee
learned Single Judge of the Andhra Pradesh High Court on said dismissing an appeal of M.V. A L Quamar against an
15th September, 1999, granted an interim order as prayed Andhra Pradesh High Court order. The High Court had held
for on a prima facie view of the matter that the Execution that it was competent to issue attachment orders against
Petition can be filed in the High Court which is otherwise the merchant vessel on the basis of a decree against it issued
having original admiralty jurisdiction. The records depict by the High Court of Justice Queen's Bench Division
that the appellant herein filed a petition to vacate the Admiralty Court in an action by Tsavliris Salvage
interim order principally on the ground that the ownership (International) Ltd. Justice Banerjee said "One can conclude
of the ship having been transferred bona fide and for that whereas the domestic law, execution scheme is
valuable consideration to Quamar Shipping Ltd., the ship as available under Sections 37, 38, 39, 41 and 42, Section 44A
attached in terms of the order of 15th September, 1999, depicts an altogether different scheme for enforcement of
cannot possibly be kept under attachment in execution of foreign judgements through Indian Courts."
the decree against the original owner being the respondent
No.2 herein. The appellant contended that in any event, the The court said that when a decree is obtained from an
latter being, not a party to the judgment, question of Indian court to enforce in the country two years after it was
execution on the basis thereof would otherwise be a total obtained, "there exists a mandatory obligation to serve a
miscarriage of justice. notice to show cause against the execution." However, the
court said in case of Section 44A, which enabled a foreign
In terms of the order as above, the Execution Petition itself decree holder to approach an Indian court for execution,
was placed before the Bench of the learned Chief Justice requirement of show cause notice was not mentioned even
wherein upon recording concurrence as regards the if the decree was over two-years old.
maintainability of the petition it was observed that the
Execution Petition be heard on merits and hence the Special "In fine, the legal fiction created by Section 44A makes the
Leave Petition before this Court under Article 136 of the Andhra Pradesh High Court, the court which passed the
Constitution being SLP No.4410 of 2000. Incidentally, as was decree and as such competency of the High Court to
in the record of this Court another SLP being SLP No.18616 entertain the execution proceeding cannot be doubted in
of 1999 against the judgment of the Division Bench of the any way," Justice Banerjee said. This order of dismissal
High Court as passed earlier and as noticed above, and since however, would not preclude the appellant herein, to obtain
both the matters pertained to the same subject matter, this release of the attached ship on furnishing a Bank guarantee
Bench deemed it fit to hear both the appeals together and of a nationalised Bank for suitable amount to the satisfaction
deal with the same in one judgment. of the Registrar (Judl.) of the Andhra Pradesh High Court,
pending the execution proceedings. The amount of Bank
Focussing on the most illuminating and lucid submissions of Guarantee may be fixed by the Registrar (Judl.) after
the learned Senior Advocates Shri P. Chidambaram, for the hearing the parties or their advocates.
appellant and Shri Ashok H. Desai, for the respondent No.1,
Mr. Chidambaram, has also placed strong reliance on the Furnishing of such Bank Guarantee will be in addition to the
Brussels Convention, being the international convention undertakings required to be furnished by the appellant
relating to the arrest of seagoing ships of 1952: while it is pursuant to the order of the High Court which is subject
true that India has not adapted the same, but its relevance matter of civil appeal arising out of SLP (C) No.18616 of 1999.
however cannot be doubted in any way in the perspective “Furnishing of such Bank Guarantee will also be without
of maritime lien. Mr. Ashok H. Desai for the respondent No.1 prejudice to the appellants rights and contentions regarding
and being the decree holder, however, in no uncertain terms the merits of the decree-holders claim qua the arrested ship.
contended that as a matter of fact it is of no significance at Once such Bank Guarantee is furnished by the appellant and
all if the judgment be termed to be the judgment in rem or requisite undertakings as earlier ordered by the High Court
judgment in personam especially in the facts of the matter are filed, the ship will be released from attachment and will

30 June 2024 The Insurance Times