1. On 11-1-1978, in Adm. Suit No. 23 of 1978, m. v. ASIAN QUEEN was ordered to be arrested pursuant to an application under Rule 731 of the Sind Chief Court Rules (O. S.). On the same day at the same time another suit being Adm. Suit No. 24 of 1978, was filed in which also an applica--tion for arrest of the ship was made but the Judge-in-Chamber had ordered arrest of the ship in the former suit and notice of the application in the other suit. Thereafter, 16 more suits by various members of the Crew and other persons were filed for wages and necessaries supplied to the ship and they were ultimately decreed. However, pursuant to the decree in Suit No. 294 of 1978 filed by Twaha the ship was sold for Rs. 14,70,000.
2. Now, the position is that there are 13 decrees passed by this Court against the ship on account of wages of the Members of the crew, 2 decrees on account of Master's wages and disbursement, one decree on mortgage and two decrees for necessaries and repairs. There is one decree in ordinary suit against the owner. Two execution applications have also been filed for execution of the foreign decrees passed by the Court at Singapore in suits filed in personam against the owners of the vessel.
3. The total amount of 13 decrees passed on account of wages of the members of the crew and two decrees passed by foreign Courts comes to Rs. 9,78,196.87. The total amount of the two decrees passed on account of Master's wages and disbursement comes to Rs. 3,17,661.29.
4. The decree on account of mortgage is for Rs. 8,80,95.90. The decrees in the suits on account of necessaries and repairs are of the total amount of Rs. 2,99,114.35. The decree against the owners in personam in Suit No. 24 of 1978 is for Rs. 1,15,271.50. Thus the total amount of all the decrees comes to Rs. 25,91,200.41. Out of the sale proceeds of Rs. 14,70,000 of the ship 30% amount has been disbursed to the decree-holders who are members of the crew m. v. ASIAN QUEEN and the rest of the amount is still available with the Nazir of this Court for disbursement.
5. On 10-12-1979, the following statement was filed by Mr. S. H. Kazmi, Mr. Nazir Ahmed Siddiqui, Mr. Abbas, Mr. Baqar Hussain, Mr. A. H. Mirza and Mr. S. A. Sarwana the Advocates for the decree- holders, with regard to priorities for payment--- "Without prejudice to the respective contention about section 73, C. P. C. The undersigned Advocates, appearing for various decree-holders against the defendant, have agreed to following order of PRIORITY for the payment of the claims which order is in accordance with BRITISH PRACTICE ;
1. Marshall's Charges ll. Port dues III. Crew Wages: Rs.
(1) Adm. Suit No. 294/7820,800.00 (2)No.295/7820,800.00 (3)No. 426/7824,029.15 (4)No.427/7856,279.76 (5)No.428/7831,471.33 (6)No. 429/781,01,494.08 (7)No.430/7812,788.16 (8)No. 596/781,99,113.00 (9)No. 645/787C,528.32 (10)No. 719/7882,674.67 (11)No. 727/7875,004.91 (12)No. 783/789,709.00 (13)No.784/789,709.00
(14) Ex. FCDNo. 61/782,33,855.49
(15) No. 104/7829,940.00 Total : 9,78,196.87 IV. Master's Wages 8c Disbursement
(1) Adm.Suit No. 238/782,11,646.29
(2) ------ No. 374/781,06,015.00 3,17,661..29 V. Mortgage,
(1) Adm.Suit No.23/78880,955.90 VI. Necessaries and Repairs
(1) Adm.Suit No.52/78200,000.00 (Necessaries)
(2) Adm.Suit No. 845/7899,114.85 (Repairs)
6. Total : 299,11.4.85 VIII. Ordinary Decree Suit No. 24/78.,. 115,271.50 (Charter Party)
7. Notes :-The above is subject to objections as to the question of payment-
(i) to the Mortgagee (Adm. Suit 23/78) over the claimant for necessaries (Adm. Suit No. 52/78 and for Repairs Adm. Suit No 845/78).
(ii) On Priority to Claimants in Execution F.C.D. No. 61/78 and F.C.D. No. 104/78 and
(iii) to allow on priority the payment of Rs. 30 500 in Adm. Suit No. 52/78 as Master's Disbursement."
8. However, on 27-1-1981 an application was filed by the advocates for the plaintiffs in Admiralty Suits Nos. 294/78, 295/78, 426;'78, 427/78, 428/78, 429/78, 430/78. 596/78, 645/78, 719/78, 727/78, 783/78, 784/78, 238/78 and 374/78, `, the contents whereof may be usefully reproduced hereinbelow "(1) That this Hon'ble Court was pleased to pass judgment and decree in the following Admiralty Suits for the claims of wages by the Crew members and Master of the vessel m. v. "ASIAN QUEEN", the defendant.
(1) Adm. Suit No. 294/78.
9. (2)No.295/78 (3)No.426/78 (4)No. 427/78 (5)No.429/78 (6)No.430/78 (7)No. 596/78 (8)No. 645/7F (9)No.719/78 (10)No.727/78 (11)No.783/78 (13)No.784/78
(13) --- --- No.238/78
(14) --- --- No.374/78
(2) That in addition to the above-noted Adm. Suits this Court has , received Two F. C. Ds. From execution being F. C. D. No. 61/78 and F. C. D. No. 104/78.
(3) That in view of the decision of this Hon'ble Court reported in PLD 1980 Kar. 458 (465), it is submitted that the above decree---holders have priority in the execution of their decree over the claims of the MORTGAGEES and claimant for NECESSARIES.
(4) That the said FC. D Execution Applications relate to the wages of the Crew members and the Master of the defendant's vessel, m. v. ASIAN QUEEN but the said F. C. Ds. Were passed in Suits in personam and do not affect the priority of the decree-holders in the Admiralty Suits mentioned in para. No. 1 above. The execution of the F. C. Ds. Is under dispute being objected to by the decree- holder in Adm. Suit No. 52 of 1978.
10. It is, therefore, prayed by the decree-holders in the Admiralty Suits mentioned in para. No. 1 above that this Hon'ble Court may be pleased to the Nazir of the High Court to pay the balance amount of the said Admiralty decree passed in rem in respect of the wages of the crew members and the Masters of the defendant vessel-"
11. On this application only Mr. S. H. Kazmi Advocate for the decree---holder in Suit No. 52 of 1978 and Mr. Mirza Advocate for the decree-holder in Suit No. 24 of 1978 and Suit No. 845 of 1978 have endorsed their no objection.
12. It is, therefore, obvious that so far as Mr. A. H. Mirza and Mr. S. H. Kazmi are concerned they have given up the question of application of the provisions of section 73, C. P. C. To disbursement of the money available to the decree-holders as the earlier statement with regard to the determination of priorities was signed by them with the reservation that they intended to argue that the disbursement of money available should be made in accordance with the provisions of section 73 of the Code of Civil Procedure which reads as follows :- `73.-(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof the assets, after deducting the costs of realization, shall be rateably dis--tributed among all such persons Provided as follows :-
(a) Where any property is sold subject to a mortgage or charge, the mortgage or incumberancer shall not be entitled to share in any surplus arising from such sale ;
(b) Where any property liable to be sold in execution of a decree is subject to a mortgagee or charge, the Court may, with the consent of the mortgagee or incumbrancer order that the property be sold free from the mortgage of charge, giving to the mortgagee or incumbrancer the same interest in the proceeds the sale as be had in the property sold ;
(c) Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied first, in defraying the expenses of the sale, secondly, in discharging the amount due under the decree ; thirdly, in discharging the interest and principal manies due on sub--sequent incumbrances (if any), and fourthly, rateably among the holders of decree for the payment of money against the judgment-debtor, who have, prior to sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person compel him to refund the assets.
(3) Nothing in this section affects any right of the Government."
13. I heard Messrs S. H. Kazmi, S. A. Sarwana, Abbas Ahmed, A. H. Mirza, Baqar Hussain, and Nazir Ahmed Siddiqui, Advocates for the decree-holders in various suits, on the question of priorities.
14. Mr. Kazmi has raised before me three-fold contentions. His contentions are, (1) that the decree- holder in Suit No. 23 of 1978 is not entitled to any payment for the decree is nullity being without jurisdiction ; (2) that the two foreign decrees, namely F. C. D. Nos. 61 of 1978 and 104 of 1978 being decrees in personam against the owners of the ship are not entitled to participate in the disbursement of the sale proceeds available, and (3) that decree on account of necessaries in Suit No. 52 of 1978 includes an amount of Rs. 30,500 on account of disbursement made to the Master of the ship and therefore, so far this amount is concerned it will have same priority as given to the decrees on account of wages of the Master.
15. In support of the objection that the decree passed in Suit No. 23 of 1978, is the nullity, Mr. Kazmi has raised two contentions. These are ;
(1) that Suit No. 23 of 1978 which is on account of mortgage could not be maintained under section 3 of the Admiralty Court Act, 1840 because when the suit was filed the ship was not under arrest and a claim on a mortgage can( be maintained only if the ship is already under arrest. It may be convenient y if the provisions of section 3 are quoted immediately hereinbelow ;.- "3. After the passing of this act, whenever any ship or vessel shall be under arrest by process issuing from the said High Court of admiralty, or the proceeds of any ship or vessel having been so arrested shall have been brought into and be in the registry of the said Court, in either such case the said Court shall have full jurisdiction to take cognizance of all claims and causes of action of any person in respect of any mortgage of such ship or vessel, and to decide any suit instituted by any such person in respect of any such claims or causes of action respectively."
(2) that the claim could be maintained under section I1 of the Admiralty Courts Act, 1861 only if the mortgage of the ship was duly registered accord--ing to the provisions of the Merchant Shipping Act, 1854. The learned counsel has pointed out that when Suit No. 23 of 1978 was filed in the Court, the Court itself had suo motu raised this objection but subsequently on admission of the claim in the suit by the defendants' Advocate the question of jurisdiction was not considered. He further pointed out that in the plaint it is not even alleged that the mortgage is registered under the Merchant Shipping Act, 1854.
16. However, Mr. S. A. Sarwana has submitted that the provisions of sec--tion 3 of the Admiralty Court Act, 1840 are attracted inasmuch as he had filed two suits on 11-1-1978 namely, Adm. Suit No. 23 of 1978 and Adm. Suit No. 24 of 1978, while the Court had ordered the arrest of the vessel in Adm. Suit No. 23 of 1978 it ordered notice in Adm. Suit No. 24 of 1978 for 14-1-1978 when the ship was ordered to be attached in this suit on an application under Order XXXVIII, rule 5 and Order XXXIX, rules 1 and 2, C.P.C. The vessel was ordered to be attached in conformity wity rule 731 of the Sind Chief Court Rules (O. S.) i. e. by serving notice on the defendants as well as on the Customs, Harbour Master, Dock Master, and Deputy Conservator of the Karachi Port Trust so that the vessel might not leave the Karachi Port. In this regard he has referred to the following order dated I 1-1-1978, passed in Adm. Suit No. 24 of 1978: "In view of the fact that I have already ordered arrest of the Defendant No. 1 in another suit filed by M/s. Hong Leong Finance Ltd. v. m. v. Asian Queen and others Mr. S. A. Sarwana, learned counsel for the Plaintiff does not press for the issuance of warrant of arrest today. Let notice of this application be issued to the Defendants for 14th January, 1978."
17. Mr. Sarwana further stated that on 30-1-1978 the ship was again arrested in Adm. Suit No. 52 of 1918 filed by Messrs Friends Syndicate Ltd.
18. Additionally he submitted that if the suit was not maintainable on 11-1-1978, it became maintainable on 14-1-1978. In support of the proposition he cited Abdullah Bhai and others v.
19. Ahmad Din PLD1964SC106, Messrs M. Wahabuddin & Sons v. The Controller of Rents and 11 others (PLD 1971 Pesh. 236), Abdullah Khan v. Tirbhuan Dutt Sing (AIR 1941 Oudh 161 As regards the submission of Mr. Kazmi that the Adm. Suit No. 23 of 1978 did not fulfil the requirements of section 11 of the Admiralty Court Act, 1861, Mr. Sarwana has submitted that he has proved by the evidence of Ajaib Haridass, Bar-at-Law, who is practising at Singapore, and who was examined by him as an expert witness to prove that the mortgage was registered under the Merchant Shipping Act, 1894 which Act in substitution of the 'Act of 1854 still holds the field by virtue of the provisions of section 416 of the Merchant Shipping Act of 1912 (Singapore), which provides as follows :- "416.-(1) The Minister may make regulations under this Act to provide for the mortgage of Singapore ships.
(2) Until provision is made by regulations made this Part the provisions of sections 31 to 46 of the United Kingdom Merchant Shipping Act, 1894 (which relate to the mortgage of British ships) shall, subject to any necessary modifications, apply to the mortgage of Singapore ships registered under this Party; Provided that any reference to the Commissioner of Customs therein shall be construed as a reference to the registrar."
20. In reply to the submission of Mr. Kazmi that the decree-holders in F.C.D. No. 61 of 1978 and F. C. D. No. 104 of 1978, being the decrees in personam against the owners of the vessel, are not entitled to participate in the disburse--ment of sale proceeds available, it is submitted by Mr. Abbas Ahmed that the decrees are on account of wages and the decree-holders are entitled to participate in the disbursement of the sale proceeds of the vessel under section 15 of the Admiralty Courts Act, 1961.
21. He has further submitted that the decree-holders by virtue of the provisions of section 35 of the Admiralty Court Act, 1361 could file the case either in rein or in personam.
22. As regards F. C. D. No. 61 of 1978, and F. C. D. No. 104 of 1978 Mr. S. A. Sarwana has submitted that these decrees are partly for wages and partly for subsistance allowance and so far as he was concerned he conceded those parts of the decrees which are for wages are entitled to participate in the disbursement of sale proceeds on priority basis along with other decrees for wages, but the other parts of decrees which are for subsistance allowance cannot have priority over the decree on mortgage.
23. So far as Mr. A. H. Mirza was concerned he has supported the arguments of Mr. S. H. Kazmi.
24. Now, before I examine the respective contentions of the learned counsel for the parties I may state that this Court exercised jurisdiction under the provisions of the Admiralty Court Act, 1840 (3 & 4 Vict. C. 65) and Admiralty Court Act, 1861 (24 Vict. C. 10), so far as they applied and operated in Pakistan by virtue of the provisions of the Colonial Courts of Admiralty Act 1890, until Ordinance No. XLII of 1980 was promulgated on 2-9-1980. It may Lfurther be mentioned that the Colonial Courts of Admiralty (Pakistan) Act, 1891 as amended from time to time, declared inter alia, this Court to be a Court of Admiralty.
25. It is not in question that these proceedings are to be governed by the law prevailing before the.
26. Promulgation of Ordinance No. XLI1 of 1980.
27. I tray further mention that there are no rules framed by this Court undo the Colonial Courts of Admiralty Act, 1890 on the question of priorities in respect of the decrees passed in Admiralty suits, though no doubt rules with re--gard to the arrest of ship, and matters concerning security, and procedure to followed for trial of Admiralty suits, and Caveat etc. Have been framed. However, in the absence of any such rules it will be just and proper to follow the rules as to priorities as laid down by British Courts, until the rules are framed under Ordinance, No. XLII of 1980. Alternatively, in the absence of such rules or any law the Court has to follow the rules of justice, equity and good conscience as provided in section 26 of the Sind Regulation IV of 1827 which has remained on the Statute book, since 1869. It reads as follows;- "26. The law to be observed in the trial of suits shall be Act of Parlia--ment and Pakistan Laws applicable to the case, in the absence of such Acts and Regulations, the usage of the Country in which the suit arose, if none such appears, the law of the defendant ; and in the absence of specific law and usage, justice, equity and good conscience alone."
28. I would, therefore, examine the question of priorities in the light of British Practice which appears to be in consonance with the rule of justice, equity and good conscience, for, we in this country, were following till recently the Acts of British Parliament passed in 1840 and 1861.
29. Accordingly, I reproduce hereinbelow the principles laid down by British Courts for consideration of priorities and which have been summarised in British Shipping Laws (Admiralty Practice), Vol. I, page 742, paragraph 1574 ; "1. Marshal's charges, expenses, etc., are in practice paid in priority to all claims, priorities are determined in relation to the net fund available thereafter or, alternatively, if an arresting plaintiff pays the charges, etc., in accordance with his undertaking, he will recover the sum paid as costs (see 2, infra).
30. 2------------------------.
31. 3-A. Possessory lien, although postponed to earlier maritime liens, has priority over subsequent liens, maritime or not (see as to wages The Gustaf ((1862) Lush. 506). If the Court orders a possessor lien holder to relinquish possession the order will include protection for any rights he may prove to have. (see, e. g. The Immac3lata Concezione ((1883) 9 P. D. 37).
32. 4.--(1) Salvage has priority over-
(a) earlier damage (The Inna (1938) P. 148).
(b) earlier salvage, if distinct and on a different occasion (The Veritas ((1501) P. 304).
(c) earlier wages (The Mons ((1932) P. 109).
(d) earlier claims to forfeiture by Crown. (Art.-Gen. v. Norstedt ((1816) 3 Price 97, 136).
(e) subsequent possessory liens (The Russland).
33. (f ) necessaries,
(g) execution creditors causing the ships to be seized by the sheriff after the salvage services were rendered, and the sheriff claiming in respect of his charges and expenses (The Lle de Ceylan ((1922) P. 256).
(h) mortgages (The Athena ((1921) 8 Li. L. R. 482).
(2) Salvage claims in respect of the same casualty rank pari passu. ( the Veritas supra).
(3) Claims for life salvage have priority over claims for salvage of property (The Mercbatat Shipping Act, 1894, S. 544 (2)).
34. 5.-(1) Damage has priority over-
(a) earlier salvage,
(b) wages,
(c) subsequent possessory liens,
(d) necessaries,
(e) execution creditors and sheriff, as in 4 (1) (g), supra, (f ) mortgages,
(2) Damage ranks pari passu with damage, earlier or later.
35. 6.-(1) Wages have priority over-
(a) earlier salvage,
(b) subsequent possessory liens,
(c) necessaries,
(d) execution creditors and sheriff, as in 4 (1) (g), supra,
(e) mortgages,
(2) Masters' wages and disbursements both rank as masters' wages,
(3) Masters' wages and disbursements rank, subject to (6) infra, pari passu.
(4) Crews' wages have priority over masters' wages and disbursements.
(5) Crews' wages rank, subject to (6) infra, pari passu.
(6) Where salvage is interposed between wages earned before and wages earned after the services, the later-earned wages have priority over the earlier-earned.
(7) Wages include repatriation expenses, subsistence allowance, etc.
(8) Special considerations apply in certain circumstances where a master is also a part-owner.
7. Mortgage priorities are as follows;
(1) British registered mortgages have priority by registration over earlier (or later) unregistered or foreign mortgages even though there is notice of the unregistered or foreign mortgage.
(2) British registered mortgages have priority inter se according to date of registration.
(3) Mortgages have priority over necessaries unless the ship was already under arrest for the necessaries when the mortgage was entered into.
(4) Unregistered and foreign mortgages have priority inter se according to the dates when they were entered into, subject to the rules of equity governing equitable mortgages.
(5) A mortgage has no priority over a possessory lien, for a possessory lien has priority over all claims except earlier maritime liens.
(6) A mortgage has no priority over a maritime lien.
8. Necessaries usually have a very low priority-
(1) When a ship has been arrested in a necessaries action, the necessaries have priority over mortgages entered into after the arrest.
(2) Under similar conditions, necessaries have priority over an execution by which a sheriff seizes the arrested ship.
(3) Necessaries rank pari passu inter se and no date is of any con--sequence.
9. Contractual claims, e. g., for breach of charter party, seem to rank as if the claims were claims in respect of necessary:
10. In certain circumstances, subrogation, depending upon leave of the Court, and liquidation or bankruptcy proceedings, may affect matters. It is to be borne in mind, too, that the Administration of Justice Act, 1956, section 3 (4) (b) has not yet been the subject of judicial considera--tion as regards priorities."
36. The learned counsel for the parties are in complete agreement that British practice as to priorities in the absence of rules which have yet to be framed, should be followed and according to them also first, the decrees on account of wages will be satisfied, second, the decrees on account of Masters' wages and disbursement. If any, will be satisfied, then the decree or. Mortgage fourth, necessaries and repairs and last. The ordinary decree will be satisfied.
37. Now, having settled the order of priorities I proceed to examine the respective contentions of the learned counsel for the parties, mentioned hereinbefore.
38. With regard to the first ground namely,. `that the mortgage was invalid, it was firstly, submitted that to maintain an action in admiralty jurisdiction on mortgage under section 11 of the Admiralty Courts Act, 1861, the mort--gage should have been registered under the Merchant Shipping Act, 1854, but the same, according to Mr. S. H. Kazmi, was registered under the Companies Act as would appear from the certificate of registration of charge (Exh. 6/7-A). However, in reply Mr. S. A. Sarwana relied on to evidence of Ajaib Haridass (Exh. 6) who, as an expert stated the state of law relating to Merchant Shipping in Singapore as follows:- "Singapore was Ceded to England by the Anglo Dutch Treaty of 1824 and she remained a Colony of Britain till 1959 when she obtained self-independence. She became part of Malaysia in 1962 and became fully independent in 1965 when she separated from Malaysia.
39. Presently Singapore is governed by Merchant Shipping Act, 1894. I conducted research to trade out if the Marchant Shipping Act, 1854 was ever applicable to Singapore. According to my research the starting point of the Act is 1854. By section 13 of the Act of 1854 provision has been made that Part II of this Act will apply to the whole or Her Majesty's Dominions. Part 11 of this Act dealt with British ships, their ownership, measurement and registry. Section 30 of this Act provides Registry of British ships and subsection (6) thereof deals with registry of such ships at Singapore. I produce photostat copy of Imperial Act dated 8th of July, 1869 and it provides for Master's attendance in Singapore to act as Registrar of Shipping under the Imperial Merchant Shipping Act, 1854, marked Exh. 6/1. 1 also produce a photostat copy of Local Ordinance No. 3 of 1869 which provides levy of fee for services rendered by the Master attendant at Singapore under the Merchant Shipping Act, 1854, marked as Exh. 6/2. In my opinion based on the above Acts it is evident that the port at Singapore is a port of registry under the Merchant Ship--ping Act, 1854. Mortgages were and still continued to be registered under the 1854 Act as amended by 1894 Act.
40. In 1894 the Act of 1854 was repealed and re-enacted.
41. In 1912 the Legislature of Singapore passed an Act, whereby it con, solidated the Law relating to Merchant Shipping. I produce a copy of the Act of 1912, marked Exh. 6/3. This copy incorporates amendment up to the year 1970. By virtue of this Act the provisions of the Merchant Shipping Act of 1894 continued to apply.
42. All the mortgages of ships are now registered in Singapore pursuant to Exb. 6/3. Singapore is still regarded as British Port of Registry under the English Law of 1894."
43. The witness further deposed that m. v. ASIAN QUEEN was mort--gaged to the plaintiff in Suit No. 23 of 1978 and the mortgage was recorded at the Port of Registry at Singapore and he produced a certificate of the extract from the Register of Ship (Exh. 6/6) and he also deposed that in his opinion based on his experience and knowledge, the mortgage of the vessel covered by Exhs. 6/6, 6/7-A and 6/12-A. Is valid and registered in accordance with the Merchant Shipping Act, 1894 read with the Merchant Shipping Act, 1912. ,t On the opinion expressed by Ajaib Haridass no question was asked. His whole cross-examination consists of five sentences and, I may reproduce the same here; "The endorsement on Exh. 6/6 reads registry closed this 22nd day of December, 1978 except so far as relates to mortgage A under section 410 of the Merchant Shipping Act, Chapter 172. Certificate of Registry cannot be traced. In my opinion this endorsement means that the ship owner does not have the benefit of registry after that date but mortgagees interest conti--nues. It is correct that Exh. 6/6 does not itself show that the mortgage was registered under the Merchant Shipping Act of 1854, 1894 or 1912. Same is the position with regard to Exh. 5/12'."
44. Mr. Sarwana further relied on the Mortgage Deed (Exh. 5/12) executed by the owners of m. v. ASIAN QUEEN in favour of the decree-holding in Suit No. 23 of 1978.
45. He also supported the claim by referring to the Certificate of Registration from the Registrar of Ships at Singapore (Exh. 6/6).
46. Mr. Kazmi mainly relied on Exh. 6/7-A, 1 may here produce the same here in extenso. It reads.
47. "FORM 40 THE COMPANIES ACT, CHAP. 185 SECTION 111 (2)
48. No. Of Company 233/1976.
49. CERTIFICATE OF REGISTRATION OF CHARGE This is to certify that a Legal Mortgage of vessel "Asian Queen" dated 15th day of September, 1976 executed by crescent Ship Owners Pte. Ltd. In favour of Hong Leong Finance Limited to secure ;$150,000 has this day been registered and numbered 1319/1976 in the Register of Charges.
50. Given under my hand and seal at Singapore this 30th day of Septem--ber, 1976.
51. Seal of NotraryCertified true copy Public,(Sd. Kandiah Visvalingam, Notary Public, Singapore.
52. Certified True CopySd. Miss Tan Swee Choo, Sd. Asst.Asst. Registrar of Companies.
53. Registrar, Singapore.
54. 17 July, 1981.
55. Sd. M. ZubairSeal of Embassy of Pakistan, Singapore.
56. Kidwai.
57. Charge', Affairs.
58. However, since Mr. Ajaib Haridass was not asked any question concern--ing Exh. 6/7-A, I have no doubt that the ship was registered under the Merchant Shipping Act, 1894 read with Clause 416 of the Merchant Shipping Act, 1912. However, it was argued that the Merchant Shipping Act mentioned in section I 1 of the Admiralty Courts Act, 1861 is that of the year 1854 and not that of the year 1894.
59. But this argument loses the sight of the principle of interpretation of statutes and the provisions of section 8 of the General Clauses Act, 1897 which provides as follows; "8.-(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of the Parlia--ment of the United Kingdom repealed and re-enacted, with or without modification, any provision of a .Former enactment, then references in any (Contract Act) or in any Regulation or instrument to the provision so repealed shall unless a different intention appears, be construed as references to the provision so re-enacted."
60. I am therefore, in view of Exhs. 5/12 and 6/6 the evidence of Ajaib Haridass, fully satisfied that the ship was registered as required under sec--tion 11 of the Admiralty Court Act, 1861.
61. I may also consider the alternate argument that the Suit on mortgage was not maintainable also under. Section 3 of the Admiralty Court Act, 1840 as the ship was not lying under arrest on 11-1-1978, when Suit No. 23 of 1978 was filed. There is no doubt that on 11-1-1978 when Suit No. 23 of 1978 was fled the ship was not lying arrested but if the Court had passed the order of arrest of the ship in Suit No. 24 of 1978 which was filed simul--taneously instead of passing order in Suit No. 23 of 1978 this objection could not have been available. But on the facts and circumstances of this case it can be said that the objection is of purely of technical nature and ought to be ignored. Even otherwise, in such a case the plaint should have been returned in accordance with the provisions of Order VII, rule 10, C. P. C. For presenta--tion to the Court which had jurisdiction which was not nonetheless subse--quently on 14-1-1978, when the order in Suit No. 24 of 1978 was passed, Court acquired jurisdiction in the suit.
62. It is settled so far as this country is concerned, that if a Court entertains a suit-without jurisdiction but subsequently acquires jurisdiction or if the cause of action for the suit matures during the pendency of proceedings, then the suit would not fail. If any authority is needed reference may be had to Abdullah Bhai and others v. Ahmad Din and Messrs M. Wahabuddin and Sons v. The Controller of Rent and 11 others.
63. In the last named case the landlord had filed an application before the expiry of the period of 6 years for which protection was provided under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and an objec--tion was raised that the application filed was premature.
64. However, during the pendency of the application the period of 6 years had already expired, there-- fore, the learned Judges of the Peshawar High Court did not dismiss the application on that ground and observed as follows; "Be that as it may, the admitted position now is that the Petitioner has already remained in possession of the disputed shop for more than six years and has also occupied his own shop premises. This development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, and consequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired."
65. There is yet another reason for which suit could not have been dismissed. It is that under Order VII, rule 10, C. P. C. It was the duty of Court to have returned the plaint for presentation to proper Court but it was not returned. It is again settled that a party should not suffer on account of the mistake of the Court.
66. Now, I would consider the third ground of Mr. S. H. Kazmi that a part of the claim in Suit No. 23 of 1978 was on account of disbursement to Master and, therefore, such part of the decree would be entitled to priority over mortgage decree. But under the order of priorities mentioned above it is the decree on account of disbursement made by the Master that will have priority Rover the decree on mortgage and not a decree on account of disbursement made to the Master. Therefore, this part of the decree will not have priority over mortgage decree.
67. Now, remains for consideration the claim of the decree-holders in F. C. D. No. 61 of 1978 and 104 of 1978. It is an admitted fact that these decrees are in personam against the owners of the vessel. In my opinion, therefore, they are not entitled to participate in the distributions of sale proceeds of the ship which has been sold pursuant to the decree passed in suit filed in re along with other decrees which were also passed in suits filed in rem against the ship for it is only the balance amount that is left after satisfying those decrees, out of the sale proceeds that goes to the owners of the vessel and it is only that amount that can be claimed by the clients of Mr. Abbas Abmad. However, Mr. Abbas Ahmad relying on the provisions of section 35 of the Admiralty Courts Act, 1861, which provides. That the jurisdiction conferred by that Act on the High Court of Admiralty might be exercised either by proceeding in rem or by proceedings in personam, argued that it was open to the decree-holder either to proceed in rem or in personam but the learned counsel has not considered the fact that the decree-holder in F. C. D. No. 61 of 1978 and 1 4 of 1978 had exercised their option when they filed the suit against the owners of the vessel in personam and not against the vessel in rem. Even now they have filed the execution applications in personam, and in my opinion rightly so, for the decrees are in personam. Mr. Abbas Ahmad has not been able to cite any authority in support of his contention.
68. I must also take notice of the other arguments advanced in relation to this claim by some of the decree-holders that even if the decree-holders in F. C. D. No. 61 of 1978 and F. C. D. No. 104 of 1978, were entitled to participate in the sale proceeds of the ship they could not claim priority for that part of the decree which was on account of subsistance allowance. However, in reply it is submitted by Mr. Abbas Ahmad that general definition of wages given in section 2(i), subsection
(10) of the Merchant Shipping Act, 1923 includes emoluments, and according to Black's Law Dictionary, "Emolument" means : The profit arising from office. Or employment; that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites ; advantage, gain, public or private, Webster ; Any perquisite, advantage, profit, or gain arising from the possession of an office'. However, the claim for wages envisaged under section 10 of Admiralty Court Act, 1861 is only for those wages which are earned on board the ship. I may here immediately quote the provisions of section 10 which are as follows; "10. The High Court of Admiralty shall have jurisdiction over any claim by a seaman of any ship for wages earned by him on board the ship, whether the same be due under a special contract or otherwise, and also over any claim by the master of any ship for wages earned by him on board the ship, and for disbursements made by him on account of the ship ; provided always, that if in any such cause the plaintiff do not recover fifty pounds, he shall not be entitled to any costs, charges or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court."
69. It is admitted fact that the claims for wages for the period when the decree-holders were on board the ship have been separately decreed and the decrees for subsistance allowance till repatriation is for the period when the decree-holders were not on board the ship. Therefore, obviously, the claim for subsistance allowance even if it is considered to be a claim for wages, which I do not think it is in not one for wages earned on board the ship.
70. I, therefore, order that the balance amount of the sale proceeds of the ship shall be distributed in accordance with the order mentioned herein--before. However, the decree-holders in Suit No. 23 of 1978 shall not be paid any amount until the expiry of period of appeal. The other decree-holders will be paid on compliance of law particularly the Foreign Exhange Regu--lation.
71. I must decide one more question which has come up for consideration incidentally. It is with regard to interest earned on that part of the sale pro--ceeds of the ship which has been deposited with the bank under the order of the Court. It is claimed by Mr. S. A. Sarwana that after satisfying the decree for wages whatever amount is left including the amount of interest earned on the amount deposited with the Bank should be paid to his client. Here, it may be necessary that to mention that the members of the crew who have obtained decrees against the ship have already been paid 30 per cent. Of the decretal amount and the balance of 70 per cent is yet to be paid. I think that the amount of interest earned has to be distributed rateably i.e. The decrees on account of wages should participate therein to the extent of unpaid amount for obviously if crew members would have been paid full amount of their decrees they would have utilized the same and now if that amount has earned interest it would be just and fair that they should have it. It is however, submitted by Mr. S. A. Sarwana that his clients should also have been paid 30 per cent of the decretal amount as was done in the cases of the members of the crew but the short answer to this submission is that the question of priority was in issue and the mortgage decree was also under challenge, therefore, they were not then entitled to receive any amount under the decree.