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The O.S.A. is dismissed subject to the above direction. No costs.
We consider it a fit to be heard by Division Bench.
In terms of the order as above, the Execution Petition itself was placed before the Bench of the learned Chief Justice wherein upon recording concurrence as regards the maintainability of the petition it was observed that the execution petition be heard on merits and hence the Special Leave Petition before this Court under Article 136 of the Constitution being SLP No.4410 of 2000. Incidentally, be it noted that there is in the record of this Court another SLP being SLP No.18616 of 1999 against the judgment of the Division Bench of the High Court as passed earlier and as noticed above, but since both the matters pertain to self same subject matter, this Bench deemed it fit to hear both the appeals together and deal with the same in one judgment. Before adverting to the most illuminating and lucid submissions of the learned Senior Advocates Shri P. Chidambaram, for the appellant and Shri Ashok H. Desai, for the respondent No.1, a brief backdrop of the admiralty jurisdiction of the country may be a useful introduction:

In that view of the matter, question of having any concurrence with the submissions of Mr. Chidambaram as regards the bar of applicability of the Code of Civil Procedure in Admiralty action does not and cannot arise, though I must frankly confess that the submissions of Mr. Chidambaram at the first blush was very attractive but a closer scrutiny of the provisions as noticed above, with respect, rendered the same totally insignificant.

Adverting now to the second count of submissions of Mr. Chidambaram to the effect that the judgment of the English Court cannot but be termed to be the judgment in personam and the Execution Petition for the arrest of the vessel and subsequent order thereon thus is not maintainable: Mr. Chidambaram found fault with the Bench decision of the High Court affirming the maintainability of the Execution Petition since arrest of a ship according to his contentions, operates in rem and not in personam and it is on this score, strong reliance was placed on the decision of the Court of Appeal in the case of The City of Mecca (1881 (6) P.D. 106). Jessel M.R. in the decision under reference stated as below:

Mr. Chidambaram in continuation of his submissions rather emphatically contended that the High Court has significantly overlooked the fact that it is only when a decree in rem is passed that a vessel may be arrested for obtaining satisfaction of the claim or the execution of a decree in rem especially in a maritime action having maritime lien. Mr. Chidambaram contended that in the event however, the proceedings are in personam as in the present case then and in that event, exercise of such a power by a foreign litigant would not arise. The appellant contended that the decree holder has to proceed only against the judgment debtor and not against the vessel and it is on this count a strong criticism has been levelled against the judgment of the High Court to the effect that there has been a total confusion as regards exercise of admiralty power in execution of a judgment in rem and judgment in personam. Admittedly the decree of the English Court is in personam, and against respondent No.2 and not the appellant- petitioner herein. It is on this score further reliance was placed on the decision of this Court in the case World Tanker Carrier Corporation vs. SNP Shipping Services Pvt. Ltd. & Anr. [1998 (5) SCC 310] wherein this Court had the following to observe:

Mr. Chidambaram next contended that there are certain fundamental principles of execution in India and referred to a judgment of Sir Ashutosh Mukherji in the case of Begg Dunlop & Co. v. Jagannath Marvari (ILR 39 Calcutta 104). The fundamental principles as recorded therein and as strongly contended by Mr. Chidambaram runs as follows:

i. A decree may be executed either by the Court which passed it or by the Court to which it has been sent for execution. (Sec.38 CPC) ii. A decree may be sent to another Court of competent jurisdiction; the Court shall be deemed to be a Court of competent jurisdiction, if such Court would have jurisdiction to try the suit where the decree was passed. (Section 39 (1) & (3) CPC).