1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This Appeal has been filed under section 7 of the Admiralty Jurisdiction of the High Courts Ordinance No, XLII of 1980, against the judgment, dated 9th December, 1993, passed by the learned Single Judge whereby the suit of appellant-plaintiff for the recovery of remuneration of the Salvage Services filed against the respondent Ship M.V. Kaptan Yousaf Kalkaval and others on determination of the preliminary issues, has been dismissed.
2. ' Facts of the case as stated are that on 20th February, 1986, the appellant's salvage tug "SALVICEROY" sailed from her salvage station in, "Djibouti" for providing salvage services to respondent No, 1, which according to reports had run a ground at the southern end of Red Sea of Port Salif in North Yemen. Accordingly immediate relief, as was requested to, was provided on the terms of Lloyds Form 1980 executed on 29th February 1986 at Salif Port where the vessel was stationed. During the process of providing salvage services, appellants tug succeeded in bringing the vessel on 24th May, 1986 from North Yemen to Suez Port, after covering a distance of about 1100 miles, where the salvage service was completed and respondent-vessel was delivered to her Master.
3. ' In terms of agreement LOF, 1980, the appellant was entitled to be compensated according to the English Arbitration Law. As per the procedure the Lloyds Committee was to make arrangement for arbitration and to call for security separately from the owners of the Cargo as well as the Vessel.
4. The Cargo owner however furnished requisite security, whereas the owner of the Vessel failed to do so. In the meanwhile the Vessel (respondent No, 1) remained anchored at Suez Port, due to which, certain charges also accrued to the Red Sea Port Authority. Therefore, following an administrative procedure, according to Egyptian law, respondent No,1, was sold by auction by the Port Authorities.
5. The charges of the Port were deducted and balance was deposited in the Suez Court. Later on the appellant, in respect of which obtained attachment order on 8th June, 1987. The order is reproduced below :--- ' IN SUEZ COURT OF FIRST NSTANCE ATTACHMENT INJUNCTION NO. 22/1987 ' WE MOHAMMED MAHMOUD HUSSEIN, PRESIDENT OF THE COURT, ' after having perused the exhibits and documents submitted and rules of law, ORDER ' That the claimants' claim be provisionally estimated in the sum of US$ 2,00,000 (Two hundred thousand U.S.D.)
6. ' That the funds under the hands of the second and third defendants, representing the balance of the proceeds of sale of m.v. "KAPTAN YUSUF KALKAVAN" be attached and arrested forthwith without notice at the risk of the claimant as security for the claim provisionally estimated in the sum of US$ 2,00,000 (Two hundred thousand U.S.D.) and that the claimant to proceed and satisfy the remaining formalities.
7. ' President of the Court. (Signature)
8. ' Dated: 8-6-1987.
9. ' Then the respondent No,2 purchased the vessel and brought her to Gadani for breaking, where it reached on 6th June, 1987, as such, on 3rd August, 1987, the appellant instituted an ,.Lion in rem against the res for the .Recovery of remuneration of salvage service by filing a Civil Suit being No,2 of 1987 under the Original Jurisdiction of this Court. On 29th August, 1987, learned Single Judge passed order against the respondent No,1 for furnishing security in the sum of Rs,40,00,000 with further directions that purchaser (respondent No,2) shall keep the accounts regularly. In obey ance to the order of this Court on 2nd December, 1987, requisite bank Guarantee was furnished and the suit was contested.
10. ' On 6th October, 1987, the learned Single Judge framed following preliminary issues for determination:-
(i) Whether this Court has jurisdiction to adjudicate upon and entertain the suit ?
(ii) Whether the sale of the defendant No,1 by the Ministry of Maritime Transport Red Sea Port Authority free from all encumbrances, debts and rights prior to its sale in March 1987 wiped the defendant No,1 clean of the plaintiffs' claim ?
(iii) Whether the sale of the defendant No,1 free from all encumbrance debts by the act of a statutory body as distinguished from a sale between private parties can be called in question before this Court in suit?
(iv) Whether the statutory sale of vessel by the Egyptian Port Authorities as per the Egyptian law did not wipe the vessel in suit clean or prior Maritime Liens and encumbrances?
11. ' Again on 7th December, 1987, following two issues were added in pursuance of application made by the respondents:
(i) Whether the plaintiffs' claim, if any upon the sale of the vessel by the Egyptian Port stands transferred to the sale proceeds of the vessel and cannot be claimed against the vessel in suit?
(ii) Relief?
12. ' In the meanwhile, arbitration proceedings commenced at London by Lloyd's Committee. It was reported that respondent No,2 (Purchaser of the Vessel) despite of notice did not opt to contest the proceedings, as such, it was concluded and award was announced in favour of appellant on 1st March, 1988, to the tune of 2,44,707,102 sterling pounds. In view of this development, with the permission of learned Trial Judge amended plaint was filed. The respondent No,2 filed an appeal before the Division Bench of this Court against the amendment order. The appeal was accepted on 10th October, 1991, therefore, plaintiff approached the Hon'ble Supreme Court, Consequently the order of amending the plaint was upheld.
13. ' In the meanwhile suit proceeded on preliminary issues. The appellant did not lead evidence whereas respondent No,2 produced D.W.1 Mazir Abu Shana and D.W.2 Saleh Muhammad El-Syed Makhdoom and respondent got recorded the statement of their Director. D.W.1 produced original as well as translation of the Egyptian Laws on the subject D.W. 2 being an Advocate deposed about the Egyptian Laws pertaining to an action in rem against res. The Hon'ble Single Judge vide impugned order, dated 9th December, 1993, dismissed the suit, as such, instant appeal was filed on the same day, whereas additional grounds were submitted on 12th June, 1994.
14. ' Messrs Muhammad Naim and Riaz Ahmad, Advocates appeared on behalf of appellant whereas Messrs Zahid Alvi and H. Shakeel Ahmad, Advocates represented the respondents.
15. ' The Hon'ble Single Judge considering the arguments put forth by parties' counsel and also following the dictum laid down by the Hon'ble Supreme Court in the case reported in PLD 1993 SC 88 settled Issue No,1 regarding jurisdiction in affirmative. Relevant observation from the impugned Judgment is reproduced here in below:--- "Learned counsel for defendant in fact while referring to aforementioned judgment of the Honourable Supreme Court laid much stress that this Court has no jurisdiction to entertain the claim but from minute perusal of the judgment it becomes clear that the Honourable Supreme Court held only that the High Courts have treated items converted by clauses (i) (m) as the item entitling a supplier to claim maritime lien in order to press into service proviso (2) of subsection (2) of section 3. As far as maritime lien is concerned it is clearly inferred from the said judgment that the High Court has jurisdiction to entertain the same. As such first issue regarding jurisdiction is settled in affirmative."
16. ' Mr. Muhammad Naeem, learned counsel for the appellant contended that remuneration for the salvage service enjoys Maritime lien as has been recognized by the English Law and it being so travels with the res, secretly therefore, whenever an action against the property is initiated that would be decided according to the law prevailing in the country where the property is situated as it has been held in PLD 1993 SC 88. He further contended that such action is always in rem against the res therefore, it would not extinguish unless it is not specified, notwithstanding the fact whether by an administrative proceedings the property has been auctioned or sold in another country, according to law prevailing over there. According to learned counsel, no Court other than the Admiralty Court has jurisdiction to wipe the from encumbrances. The sale of respondent No,1 at Suez Port was an administrative action by the Red Sea Port Authority to recover its charges incurred upon her during the period when she remained stationed at the port. Thus, according to him, the learned Single Judge decided the relevant issues contrary to the settled law of Admiralty.
17. ' On the other hand, learned counsel for respondent Mr. Zahid Alvi, Advocate, firstly contended that the additional grounds furnished by the appellant without seeking permission of the Court under Order 41, rule 3, C.P.C. May not be taken into consideration. Secondly the vessel was arrested at Suez Port for non-payment of the dues which were realized by putting her to auction and the balance sale proceed is lying with the Suez Court against which appellant had obtained an attachment order, therefore, no action could have been initiated against the respondent No,1 who has been wiped free from all encumbrances. The respondents pleaded the foreign law of the Egypt as a fact in the written statement and also has proved through D.Ws.1 and 2 that action against the vessel in Egypt was taken in rem thus no relief, as has been prayed for, can be granted. Thus, the learned Single Judge has rightly settled the issues. The LOF agreement was not executed between the respondent No,2 and the appellant, therefore, this agreement cannot be enforced against him.
18. Moreover, according to the terms thereof the appellant except enforcing the contract through arbitration against the executant legitimately is estopped to press his claim against respondent No,2. The learned counsel further contended that English Law of Admiralty is not to be followed because respondent No,1 was auctioned at Suez Port, according to Egyptian Law, therefore, the judgments cited by appellant's counsel are not attracted.
19. ' At this stage, it would be appropriate to deal with the preliminary objection raised by respondents' counsel namely whether without seeking permission of the Court, additional grounds submitted by appellants are liable to be considered.
20. Under Order 41, rule 2, C.P.C. Appellate Court has been vested with powers to grant permission to appellant for filing additional grounds, provided the points raised therein are the same which were agitated before the trial Court and the party, who is opposing the appeal had the knowledge about them. We have carefully perused the additional grounds submitted by appellant on 12th June, 1994.
21. In our opinion, it involves almost the same points which were put up by the appellant before the Trial Judge. The respondents also had its notice as Mr. Alvi learned counsel, during arguments on the appeal tried to answer them by controverting to the stand of appellant's counsel. Even otherwise we have heard the parties' counsel at length and both of them focused their respective submissions in support and . Against the grounds originally incorporated in the memorandum of appeal as well as on the additional grounds, therefore, in our estimation after having heard the parties at length, it would not be fair and in the interest of justice to refuse appellant from impeaching the impugned judgment on the grounds which were subsequently furnished. Thus, under the circumstances, the objection raised by respondents' counsel is not liable to prevail.
22. Therefore, the additional grounds submitted in support of the appeal by appellants are hereby treated to be the part of memorandum of appeal.
23. ' Now adverting to the merit of the appeal, it is to be seen that at this stage, point requiring determination is "whether the sale of respondent No,1 by the Ministry of Maritime Transport Red Sea Port Authority wiped her clean of the appellants' claim pertaining to remuneration of salvage services? In the impugned judgment the Hon'ble Single Judge while disposing of Issues Nos.2 to 5 considered that evidence of D.Ws.1 and 2 led by respondent coupled with the ratio in the case of Ship Optima reported in English decisions i.e, 1908 Reports of the cases relating to Maritime Law, Volume X, New Series, p.147 and concluded the 'if the ship is arrested by Court and a Statutory Authority has claim over it, it can attach and sell her under the abovesaid law and then to deposit sale proceed in the Court". It was further held that 'the statutory sale has the same effect as that of Court sale." The Hon'ble Judge although agreed with the learned counsel of appellant that proceeding in rem against a vessel are distinct from proceeding in persona. In English Law and the law applicable to Commonwealth Countries but in respect of the Egyptian law, it was held that according to the Expert's opinion of Egypt D.W.2, statutory sale has got the same effect as of sale by Court rendering the Vessel free from all encumbrances regarding title.
24. ' In view of these findings it is necessary to examine the evidence produced by the respondents as well as the ratio decidendi in the case of Ship Optima, referred to here in above.
25. ' D.W. 1 Mazin Abu Shaanak a Jordanian National has translated Articles 48 + 67 of the Administrative Attachment Law No,308 of 1955 of Egypt. He produced the translation of the cover of book as Exh.D/2 and the original book as Exh.D/3, out of which he only produced three translated pages bearing Nos.21, 22 and 29 as Exhs.D/4 and D/5. Exh.D/4 is Article 48 and D/5 is Article 67.
26. ' The translation of the Cover of Law No,308 of 1955, indicates that law relates to Administrative attachment. Clarification memos, rules, and orders related thereto, whereas the translation of Articles 48 and 67 Exhs.D/4 and 5, for sake of convenience are reproduced hereinbelow:--- ' ADMINISTRATIVE ATTACHMENT LAW 308 OF 1955 ARTICLE 48: ' I known rights in rem are found against the seized property and have been declared before the execution of the administrative attachment against privileged debts or before the registration of the process verbal of the administrative attachment/seizure against Taxes or other demands. The process verbal of the attachment/seizure should be notified to the owners of such rights within one month from the date of attachment or registration of process verbal of attachment or registration of process verbal or charges.
27. ' The notice shall be registered letter against receipt. If the residence is not known, the notice of process verbal of attachment seizure should be addressed to be designated agency in the district where the property exists.
28. ' The designated agency should endorse on the original copy of the process verbal and notify the same at no cost/expenses to the mentioned creditors, within 40 days from the date of its endorsement on the process verbal.
29. ' It is not allowed to start the sale of the property before passing of at least 40 days from the date of notifying the process verbal of attachment/seizure to the creditors, or to the designated agency.
30. ARTICLE 67: ' As a result of `Shaher' publication of the minutes of the sale proceedings the property sold shall be purged/cleared of priority/preference and privilege rights/charging liens, official mortgages and occupancy rights provided the owners of such rights were notified of such process verbal of attachment/seizure and the date of sale session in accordance with Article 48."
31. ' It is to be noted that during examination-in-chief of the witness, learned counsel appearing for appellant objected that the witness is not an official translator, nor he has brought complete translation of the Law No,308 of 1955, therefore, the evidence so furnished by him may not be accepted. The Hon'ble trial Court noted the objections with the observations that it will be decided at the time of final hearing of the case. It may be seen that respondents had an obligation to prove the Egyptian Law as a question of fact under Article 52 of the Qanun-e-Shahadat, 1984, as it has been decided by the Hon'ble Supreme Court in the case of Atlantic Steamer Supply Co. v. M.B.
32. Titisee and others (PLD 1993 SC 88). Since the complete text of the law i.e, Exh.D/3 has not been produced, therefore, in our estimation it is not free from difficulty to hold that the sale of respondent No,1 has been made by an administrative authority of the Suez Port, enjoying the status of Court.
33. ' The second witness of respondent namely Saleh Muhammad Al-Syed Al-Makhdoom, Advocate, due to his experience of practice in Maritime Law in Egypt deposed that under Article 48 reproduced here in above, the meaning of word is 'Right in rem'. He further deposed that Article 1 of the law of attachment Exh.D/3, talks of the approval and procedure of administrative attachment applied in respect of the recovery of all dues and money of the Government, General authorities and Public authorities. He further deposed that provisions of administrative attachment and sale also empowers banks in which Government holds more than 50% share to apply the provisions of this law for the recovery of their dues and claims and such dues can be recovered by statutory sale by the relevant authority without obtaining the Court judgment. According to him Red Sea Port is a Government body and has independent legal entity. Its funds are public funds as such, the authority has the jurisdiction to take direct action under the Administrative Attachment Law. He further elaborated that Law No,308 is a comprehensive law on the subject. After the property is sold, the Government dues are deducted therefrom and balance is deposited in the Treasury of the Court for satisfying the claim of other claimants if any. The purchaser of the property sold by way of Administrative Attachment and statutory sale receives clean title to the property, free from all prior liens or in cumbrances if any on the property. The right of a person on the property sold is transferred when sale proceed deposited in the Court. It is important to note that witness also made a categorical statement that even in case of 'Maritime Lien' the rights are transferred to the sale proceedings. In case of Salver's Lien', the right of Salvor is transferred to the sale proceed in the same rank and category as it was before. By Article 67 property sold becomes clear and free from all encumbrances. The sale proceeds are deposited in the Court having the jurisdiction, where the property is located. According to him in Suez there is a Court known as Primary Suez Court of first instance. It is competent to deal with the cases of Maritime jurisdiction. A salvage claimant is entitled to apply the Court where the money is deposited for specification of his claim. The Court has to decide the same by judgment. The witness further explained that Court shall also decide the priority of claimants, according to Law No,35 of 1951, which relates to Maritime lien and mortgage.
34. The Law No,35 of 1951 and its provisions are same as the provision of International conventions for unification of certain rules relating to Maritime Liens and mortgagors of 1926, especially in category of lien and their ranking in order of priorities. The witness explained rank of priorities where the salvage remuneration falls at Serial No,3. The witness also admitted that Egypt is not party to convention of 1926, but it has adopted the same principles thereof and made it a part of the law. It was also stated by him that Article 48 of the Law No,308 is related to all debts against the property to be sold by statutory sale including a vessel and such properties which have been registered in Egypt. In the opinion of witness the statutory sale has the same effect as that of a Court sale because the statutory authority merely deducts the amount due to it while the balance is deposited in the Court who decides the claim of other claimants in order of priorities.
35. ' In cross-examination, the witness admitted that in Egypt right in rem is known as privileged right and is governed by Law No,35 of 1951, relating to Maritime lien and Mortgages. He produced the said law with its translation as Exhs.P/1 and 2. According to Article 6 of Law No,35, claims secured by a lien follow the vessel into what hands it may pass. According to him Article 1 provides the category of Maritime claim and lien and their order of priorities. The witness further admitted that in connection with the administrative sale of the property it is correct that proceedings are directed against the owners of the properties and against any claimant, whose claim is registered in Egypt.
36. In connection with the sale of the ship the administrative attachment and sale proceedings deals with right and liability of the owner of ship. In reexamination the witness explained that there is no conflict in the Laws of 1951 and 1955, however, Law of 1955 has priority over Law of 1951.
37. ' From the above statement of Expert witness it emerges that in Egypt two enactments, one being Law No,308 of 1955 (Exh.D/3) relating to administrative attachment of the seized ploperty and Law No,35 of 1951 (Exh.P/1) relating to Maritime privileges, are invoked. Two articles of the former law have been reproduced hereinabove, therefore, it would be expedient to also reproduce Articles 1, 6 and 7 from the later law.
38. Article (1)
39. ' The following debts only to be considered privileged:
(1) Law costs and other expenses incurred in order to preserve the vessel and to procure its sale and the distribution of the proceeds of sale, tonnage dues, lights and harbour dues and other public taxes and charges of the same character, pilotage dues and indemnities for damage to harbour works docks and navigable ways and costs of rock removal and the costs of watching the preservation from the time of entry of the vessel into the last port.
(2) Claims arising out of the contract of engagements of the Master, crew and other persons hired on board.
(3) Remuneration for assistance and salvage and the contribution of the vessel general average.
(4) Indemnities for collisions or other accident of navigation and indemnities for personal injury to passengers or crew, indemnities for loss of or damage to cargo or baggage.
(5) Claims resulting from contracts entered into or acts done by the Master acting within the scope of his authority, away from the vessel's home port, where such contracts or acts are necessary for the preservation of the vessel or the continuation of its voyage, whether the Master is or is not at the same time Owners of the vessel and whether the claim is his own or that of shipchandlers, repairers, lenders or other contractual creditors.
40. Article (6)
41. ' Claims secured by a lien follow the vessel into whatever hands it may pass.
42. ' Article (7)
43. ' The liens cease to exist by:
(a) Judicial Sale.
(b) Ownership transfer following the provisions referred to in the following Article.
(c) One year expiration, except for liens for supplied mentioned in No,5 of Article 1 still continue in force for not more than six months."
44. ' Besides the above two witnesses, Director of respondent No,2, Rafique Tharia son of Ghulam Hussain was also produced as D.W.3, but he did not depose anything material to decide the proposition in hand, except mentioning that he purchased the ship free from all encumbrances, in view of the certificate issued by the Suez Port Authorities.
45. ' On perusal of the statement of D.W.2 it is menifest that non-judicial functionaries in Egypt are authorised under Law No,308 of 1955 to effect the Administrative attachment as well as sale of the property against which, the dues are outstanding. D.W.2 in cross-examination categorically admitted that such proceedings pertaining to sale of the ship are directed against its owner. This version gets confirmed from the fact that appellant obtained an attachment order regarding the balance amount of the sale of ship from the Court by instituting proceedings against the previous Turkish owners of the ship. As far as the Law No,35 of 1951 is concerned that exclusively deals with the maritime privileges. A perusal of Article 1 reproduced here in above reveals that the remuneration for assistance and salvage are covered by the Maritime lien. Similarly Article 6 of this law provides that the claim secured by a lien follow the vessel into whatever hands it may pass. It is equally important to note that the Maritime lien under this law, in pursuance of Article 7, ceases to exist only by judicial sale. Although D.W.2 in re-examination deposed that the Law of 1955 has priority over Law of 1951, but the witness did not assign any cogent reason in support of his such version. In this context it is to be noted that according to interpretation of law the law which deals specifically in respect of a particular subject is known as a "Special Law" whereas the law which generally deals with different types of claim is known as a 'General Law' and in presence of both the laws, the Special Law would be applicable to deal with a particular subject, for which, such law has been promulgated. Since the matter pertains to determination of remuneration of salvage services rendered by appellant for respondent No,1, therefore, the Law No,35 of 1951 will be applicable.
46. ' Mr. Muhammad Nacem, learned counsel for appellant, referred to Article 55 of the. Qanun-e- Shahadat, 1984 as well as para. 527 from the book British Shipping Law, Volume 14 Maritime Lien by Dr. Thomas and a judgment in the case of Goulandris, reported in 1927, The Law Reports, on the basis of said citations, he argued that in an action against the res, only the Court can wipe the ship from encumbrances. As far as statutory functionaries are concerned it can direct action on administrative side and the sale by an Administrative authority cannot be equated to the sale by a Court.
47. ' It is noteworthy that in the above-reported judgment, salvage services were provided by the Goulandris firm under Lloyds Standards Form of the Steamer G. At Constantinople, where no security was provided as such, she was arrested by the Turkish. Court from where she was released on the terms that if she was allowed to sail to Alexandria she should be re-arrested there and accordingly an order was obtained by the Salvage Contractor on the arrival of the ship at Alexandria. After the arrest of Ship the owner became bankrupt and when the ship arrived at Alexandria she was seized by the trustee in Bankruptcy. The plaintiff proceeded to arbitration in London in terms of the agreement and obtained an award against both ship and Cargo but the Cargo owners only were represented at the arbitration. Shortly afterwards the trustee in bankruptcy with the approval of the Mixed Tribunal of Commerce, sold the ship to the defendants and guaranteed that she was free from all encumbrances on the part of creditors of the bankrupt owners. Under the Egyptian Code Civil Mixte there is no right in rem or maritime lien for salvage. The plaintiffs claimed in the bankruptcy proceedings the amount of the salvage award, but the trustee in bankruptcy took up the position that the master has no authority to sign the arbitration agreement and referred the claim to the Egyptian Court, where ultimately the ship was sold and when she went to England the Salvage contractor got issued a writ in rem against her and the defendant instituted proceedings before the Probate Division to set the writ aside on the ground that ship Goulandris has already been wiped clean by the Egyptian Court. With this background it was held that the sale by the Syndic under the authority of Court in Egypt has nothing to do with an action in rem and the sale does not purport to be by the Court. Relevant para. From the judgment for reference is reproduced here in below:--- "The next contention was that the sale by the syndic under the authority of the Court in Egypt was as good as a sale in an action in rem. The action of the syndic, however, had nothing whatever to do with an action in rem, and the sale does not purport to be by the Court; it is a sale by the syndic with the approval of the Court. It transfers property no doubt, i.e, such interests in the property as the debtor may have had. But it does not purport to decide rights in the property. It was also argued that according to Castrique v. Imrie a sale by the Court in France is the same as a sale in rem. I do not think that is the right conclusion to be drawn from Castrique v. Imprie. I think the decision in that case was that what had happened was the same as a sale in an action in rem.
48. Here the facts are quite different, and I do not think the sale in this case has any resemblances to a sale in an action in rem."
49. (1927 The Law Reports, Probate Division, Courts of Probate Divorce, and Admiralty, ' Admiralty, The Goulandris, p.194)
50. ' Mr. Alvi, learned counsel stated that the above judgment is not applicable because at that time, Egypt herself had no law relating to Maritime lien and now Law No,308 of 1955 has been promulgated, according to which, any proceedings against the vessel shall be deemed an action in rem and after that the ship will be free from all encumbrances.
51. We are not inclined to agree with the learned counsel, because even under the present Law No,35 9f 1951 of Egypt, the Maritime lien is attached with the vessel and in terms of Article 6 claim secured by the lien follow the vessel into whatever hands it may pass and such right ceases to exist, when according to Article 7, judicial sale has been affected. Similarly under the British Shipping laws, a sale by order of a Court of competent jurisdiction in the proceedings in rem shall extinguish all liens attached to the res and would convey a valid title to the purchaser which is free of all encumbrances against the whole world. Likewise in the case of Ship Optima, reported in 1908 Reports of the cases relating to Maritime Law, Volume X, New Series, page 147, which has also been relied upon, in the impugned judgment, it was held as under:--- "There are two kinds of actions which can be maintained; one is the personal claim against the owner of property salved for salvage, the other is a claim in rem against the property salved, for salving it. This is the first time I have ever heard of a claim being made against the proceeds of the sale of the property while in the hands of someone, who sold it unless indeed it was sold while in the hands of the Court. 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 aliens and claims against it in the hands of the purchasers, who take it by virtue of the title confined by the Court, the Court retains those proceeds to answer all claims that may be against the ship."
52. The ratio decidendi of the above two judgments and the Law No,35 of 1951 of Egypt, as well as the precedented English Law which can be followed by practice in Pakistan, as is held in PLD 1982 Kar.
53. 749, it is concluded that the sale of the ship by the Administrative Authorities of Suez Port under the provisions of Law No,308 of 1955, cannot be equated with the sale by an Admiralty Court either exercising its jurisdiction in Egypt or in Pakistan where the ship-respondent No,1 has been brought on purchasing by the respondent No,2. Thus, in absence of a judicial sale by the competent Court, the appellant-plaintiff Solviceroy, had its maritime lien against the vessel under section 3 of the Admiralty jurisdiction of the High Courts Ordinance, 1980 read with Articles 1, 6 and 7 of the Law No:35 of 1955 of Egypt and respondent No,1, despite of the administrative attachment, under Law No,308 of 1955 has not been wiped clean, as far as the maritime lien of appellant is concerned.
54. Therefore, in view of these conclusions with utmost respect, we are not inclined to uphold the findings on Issues Nos.2 and 3 given by the Hon'ble Single Judge.
55. Accordingly it is held that the respondent No,1 m.v. Kaptan Yusuf Kalkavan has not been wiped clean as far as appellant's claim is concerned by the Ministry of Maritime Transport Red Port Authority and the claim of appellant does not stand transferred to the sale proceeds of the vessel, because those proceedings were instituted against the Turkish owners of the vessel, therefore, the Issue No,4 is answered accordingly.
56. ' For the foregoing reasons, the appeal is allowed and findings on Issues Nos.2 to 4 are set aside and case is remanded to Hon'ble Single Judge, for decision on merits. Parties shall bear their own costs.