1. ' SALEEM AKHTAR, J.--- The appellant, a mortgagee of the vessel v. Asian Queen registered in Singapore, filed Admiralty Suit No,23 of 1978 on 11-1-1978 in the High Court of Sindh for arrest and sale of the vessel for the satisfaction of the mortgage claim. The vessel was arrested by the High Court, in exercise of its admiralty jurisdiction. Thereafter during April 1978 to September, 1978 several other Admiralty suits and execution applications were filed in the admiralty jurisdiction for admiralty claims for w:tges, of the crew members of the vessel, wages and disbursement by the Masters of the vessel, for recovery of necessaries supplied to the vessel and charges for repairs of the vessel. In two suit Nos.294 of 1978 and 295 of 1978 filed by the crew compromise decree was passed. The appellant's suit was decreed on 3-10-1978 for Rs,8,80,995.90. It may be mentioned that in all the suits, except in suit No,374 of 1978, which were decreed, no interest was allowed by the Court. Under the order of the Court m.v. Asian Queen was sold for Rs,14,74,372.60 which was confirmed on 23-12-1.978. The Court also ordered the sale proceeds to be deposited in the Bank which earned interest. In the meantime, the decree-holder in Admiralty Suit No,374 of 1978 relating to the supply of necessaries filed application under section 73 of Code of Civil Procedure objecting to the validity of the appellant's decree and prayed that payment should be made to the decree- holders in accordance with section 73 of C.P.C. As there were several decree-holders in respect of different types of admiralty claims, the High Court first took up the question of priorities amongst the rival claimants. Before deciding priorities, the Court ordered payment of 30% of the decretal amount to the crew members and Master which was accordingly paid to them. The learned Single Judge by order dated 28-9-1991 after determining the priorities and holding that claim for wages of Crew and Master has priority over the mortgage claim ordered that the interest earned on 70% of the decretal amount of Crew and Master be also paid to them. The appellant aggrieved by this order filed Admiralty Appeal No,2 of 1981 against the order of the learned Single Judge which was dismissed summarily by the impugned order dated 10-11-1981.
2. ' The total amount of 13 decrees passed on account of wages of the members of crew and two decrees passed by Foreign Court comes to Rs,9,78,196.78. The total amount of two decrees passed on account of Master's wages and disbursement comes to Rs,3,17,661.29. The decree on account of mortgage in favour of appellant is for Rs,8,80,955.90 and the total amount of decrees in suits for supply of necessaries and repairs is for Rs2,99,114.85. Additionally there are decrees in personam against the owners for Rs,1,15,271.50. Thus, the total amount of all the decrees comes to Rs,25,91,200.41 as against the sales proceeds of the vessel and interest amounting to Rs,15,74,272.
3. Having regard to the priorities as determined by the learned Single Judge which has not been challenged, after satisfying the decrees passed in favour of the crew members and Master of the ship appellant's decree could not be satisfied in full. Leave to appeal was therefore granted to consider whether the interest earned from the balance of the sale proceeds lying with the Court, should be applied to the satisfaction of the decree in favour of the appellant in accordance with the priority already determined and not rateably, for the reason that the crew members and Master of the ship are not entitled to interest on the decretal amount granted to them by the Court.
4. ' The effect of the impugned order is that in view of the priority the Crew and Master have for their claim for wages and disbursement over the claim of the mortgagee, necessary men and repairs, their decrees shall be satisfied in full and in addition to it they will be paid interest which has accrued on 70% of the decretal amount lying in deposit in the hands of the Court. Therefore, the main question arises, whether the crew members and Master are entitled to claim interest accrued on their share of the decretal amount. It may be noted that in the decrees passed in favour of crew members and Master, interest though claimed, was not awarded by the Court.
5. ' Mr. Zahoorul Haq, the learned Advocate for the appellant, has contended that the amount deposited in Court remained the property of the judgment-debtor in the hands of the Court and the same could be treated property of the decree-holders only after payment out order had been passed. In this regard reference has been made to British Shipping Laws Vol. I entitled Admiralty Practice 1964 Edition, paragraphs 395 and 409 where it has been observed that in case of several decree-holders involving determination of priorities, unless they agree how much should be paid to each one of them, the Court should first determine the priority and then payment out order be passed. The learned Advocate has also referred to Rules 762, 763 of the Sindh Chief Court Rules
(OS) framed under the Colonial Court Admiralty Act, 1890. Rule 763 provides that money paid in the Court should not be paid out except in pursuance of an order of the Court. Therefore, the practice and the Rules provide that any amount deposited in Court under any proceeding, payment out can be made only by an order of the Court. It may be clarified here that, before the promulgation of Admiralty Jurisdiction of High Courts Ordinance (Ordinance XLII of 1980), the admiralty jurisdiction of the High Court of Sindh was governed by the Admiralty Court Acts of 1840 and 1861 and Colonial Court of Admiralty Act, 1890 which have been repealed by the above Ordinance. After promulgation of the said Ordinance, as no rules have been framed, the High Court of Sindh has followed the Rules framed under the Colonial Court of Admiralty. Act, 1890 contained in the Chief Court Rules, (O.S.) comprising of Rule 729 to Rule 775. Rule 774 provides that other proceedings in the suit brought in the Court in exercise of its admiralty jurisdiction not provided by the rules shall be regulated by the Rules and Practice of the High Court of Sindh in suits brought in exercise of its original civil jurisdiction. In support of his contention that before payment out order is passed the decree-holder cannot claim any right in the decretal amount deposited in Court reliance has been placed on Manickam C hem iar v. Income-tax Officer, Madura and another AIR 1938 Mad. 360 and V.T. Ranga Bashyam Chetty v. Sambandara Chetty and another AIR 1952 Mad.
6. 540.
7. 'In this background it is to be considered whether the Crew and Master have any right or interest in the decretal amount. As the suit has been filed under the admiralty jurisdiction, the case must be considered in the light of admiralty practice. It is an undisputed fact that for the claim of their wages, crew members and Master have a maritime lien on the res i,e, the vessel. It is a right in rem enforceable by action in rem against the res. The concept of maritime lien is not alien to jurisprudence. Its peculiarities, characteristics, effects and application are universally accepted and have attained jurisprudential maturity. In British Shipping Laws Vol. 14 Maritime lien by Thomas 1980 Edition it has been observed that 'The maritime lien represents contemporary maritime law and has in recent times been described as 'one of the first principles of the law of the Sea. The expression a maritime lien was probably first coined in English Law by Sir John Jewis while delivering the judgment of Privy Council in the Bold- Bucclengh (1851) 7 MOO. P.C.
267. Every claim relating to the ship cannot create maritime lien. It arises and attaches to the ship in cases of bottomary, damage done by a ship, salvage, Seamen and Master's wages and Master's disbursements. Maritime lien is a charge on the res and travels with it even in the hands of a bona fide purchaser without notice. Where the ship to which a maritime lien is attached is sold by the Court the lien continues to follow the sale proceeds over which the claimant has the same right as on the res. It continues till it is satisfied or discharged or lost due to negligence or lathes or voluntarily withdrawn by the holder. Maritime lien is distinct from common law or equitable lien. It does not depend upon possession but arises independent of agreement or possession. It now seems to be accepted that a maritime lien is a substantive right whereas statutory right of action in rem is a procedural remedy. By a maritime lien security for the claim to the value of the vessel is provided to the lienee and he can get the res arrested without joining the owner whose name or address may not be available. It provides a convenient mode of executing and realising the maritime claim. The right of a maritime lienee in the res has been authoritatively stated in the British Shipping Laws Vol. 14 entitled Maritime Liens by Thomas as follows: "Wherase it is clear that a maritime lien does not entail the transfer of title or possession it is however less easy to comprehend that the right of a maritime hence is to be analysed as a bare right in rem. Whereas this would clearly appear to be the case with regard to a statutory right of action in rem, that it is equally true of the legal nexus between a maritime hence and an incumbranced res is more doubtful. When the developed law is viewed in its entirety it is hard to resist the conclusion that a maritime lienee enjoyes a proprietary interest in the incumbranced res.
8. A maritime lien may be rationally viewed as being composed of two distinct facets, the first a proprietary charge which incumbrances the res from the moment of the circumstances which give rise to the lien, the second a right in rem whereby the charge is crystallised or perfected. Such an analysis is at least consistent with the essential characteristic of a maritime lien, that is, a charge which accrues and thereafter runs unconditionally with the res and which is enforceable in rem."
9. ' In the Bold Bucclengh (1851) 7 MOO P.C. 267, Sir John Joervis at P.285 described a maritime lienee as 'a port owner in interest', while Sir George Jessel, in Re: Australian Direct Steam Navigation Co.
10. (1875) L.R. 20 Eq. 325,. Called him 'a Creditor with title in the res'. In the Tervar (1922) p.259 his interest was termed as a `substraction from the interest of the owner'. Scott, J. In the Tolten (1946) p.135 remarked that the security of a maritime lienee is a 'vested right of property' and 'conferring a true charge on the ship and freight of a proprietary kind. In this regard reference can be made to the observations in The Veritus (1901) p.304 and The Goulandris (1927) p.182. Due to special characteristics attached to a claim of maritime hence historically and legally he has a substantial interest in the res and its sale proceeds which may be in the nature of proprietary interest but it is restricted to the extent of the claim. Maritime lien is an invisible and indelible right which attaches with the res in respect of which the claim arises. It attaches to the property in its entirety equally incumbering each and every part of it. Refer to the Optima (1905) 74 LJ p.94 and the Fronjot (1907)
11. 24 TLR 26. 'Any repairs or addition effected subsequently to the attachment of a maritime lien are equally encumbered for they are considered as accretion to the res, although in this, the Court will have regard to third party interest' British Shipping Law Vol. 14, p.27. Maritime lien for wages and disbursement extends to the ship and freight.
12. In this background it is to be considered whether the crew and Master could claim any amount out of the interest earned on the sale proceeds in the hands of the Court. The crew and Master had precedence over the appellant whose claim ranks inferior to their claim. Once the rest is arrested by the Court, it remains in the custody of the Court for the satisfaction of the claim or claims; as the case may be. The maritime lien continues and travels with the res. Once a Court of competent jurisdiction sells the res in an action in rem, the purchaser gets a clear and unincumbered title and the sale proceed comes in the hands of the Court. The maritime lien which had attached to the ship does not extinguish with the sale but is transferred to the sale proceed in the hands of the Court. The sale proceed will be subject to the same lien and claim which a lienee had on the ship (res). The Court thus keeps the sale proceeds in its custody for the satisfaction of the claim of the claimants. This is the legal implication of a judicial sale in such cases. In the Optima (1905) 10 ASP Mar Law Cas. 147 it was observed as follows:-- "It is perfectly true that in some cases, where the proceedings are in rem against the property and where the property has been arrested and sold by the Court, the Court, having the proceeds in its hands and having, by virtue of the sale, freed the ship from all liens and claims against it in the hands of the purchasers, who take it by virtue of the title confirmed by the Court, the Court retains those proceeds to answer all claims that may be made against the ship."
13. The crew members and Master having maritime lien on the sale proceeds could claim satisfaction to the extent of decree passed in their favour. It is true that maritime law recognises the right of the Renee in the nature of proprietary right in the res or its sale proceeds but if the maritime lien or a decree based on such claim is satisfied out of the sale proceeds leaving a surplus balance in the hands of the Court, the same shall be appropriated for the satisfaction of claims ranking lower in priorities. In case of a maritime lienee, the interest accrued on such amount being accretion to the same will be appropriated to the extent of satisfaction of the decree. The fact that any interest accrued to the sale proceeds should in all circumstances be rateably distributed amongst the claimants does not seem to be correct. The lienee or a decree-holder can claim satisfaction of what has been awarded to him. The Court holds the sale proceeds for satisfaction of the claims/decrees and not for rateable distribution of the surplus amount left in hand after satisfaction of the decrees amongst the claimants and decree-holders. Interest for the period from the institution of the suit till the date of decree or realisation cannot be claimed as a matter of right.
14. Grant of such interest is within the discretion of the Court and can be awarded at the time of passing the decree. A person can claim interest if the agreement or law provides for it or there exist equitable grounds for awarding interest. Reference can be made to Bengal Nagpur Railway Co. Ltd. v. Battanji Bamji and others AIR 1938 PC 67 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393. The Crew Members and Master had claimed interest but the Court refused to grant any decree for it. In the absence of a decree agreement or law to that effect, could it be granted on equitable ground. The main factor which seem, to have influenced the learned Judges of the High Court is that the claims of the Crew members and Master were not paid immediately on sale of the ship but they were paid 30% of their claim and the balance was deferred till the determination of priorities amongst various claimants. In cases where sale proceed is not sufficient to satisfy the claims of all the decree-holders, this knot problem of priorities has to be determined before passing any order of payment out.
15. The ranking of rival claims are determined with reference to consideration of equity, public policy and commercial expediency with the object of justly settling the claims. Reference can be made to the Mons 43 L.L. Rep. 151 = (1932) p.109; The Leoborg (No,2) 1964 I Lloyds L. Rep. 3$0 and the Lyrma (No,2) (1978) 2 Lloyds L.Rep.
30. The crew members and Master have preferential, higher and prior right on equitable ground and public policy to protect the seamen's right which has always been of great concern to Admiralty Courts all over the world. In these circumstances crew members and Master after satisfaction of their entire claim, cannot on equitable grounds as well ask for further amount by way of interest not granted to them under the decree.
16. ' We, therefore, allow the appeal with no order as to costs.