PETROMARINE PRODUCTS LTD.versusOCEAN MARINE SERVICES COMPANY LTD. & ORS.

                      [2015] 4 S.C.R. 1086


A              PETROMARINE PRODUCTS LTD.
                                v.
     OCEAN MARINE SERVICES COMPANY LTD. & ORS.
            (Civil Appeal No.6156 Of 2005)
B
                      FEBRUARY 17, 2015

         [M.Y. EQBAL AND SHIVA KIRTI SINGH, JJ.]

        Merchant Shipping Act, 1958:
c
       s. 3(15) - Admiralty jurisdiction - Suit for recovery -
  Arrest of vessel - Vessel berthed at Madras harbor -
  Jurisdiction of High Court - Held: When the vessel is
  berthed at the Madras harbor, the Madras High Court alone
D has jurisdiction to entertain any claim against the subject
  vessel as per provisions of s. 3(15) - On facts, arrest of
  vessel by the Madras High Court being the first arrest, the
  vessel and the sale proceeds are custodial legis of the said
  court and no proceedings in Bombay High Court can be
E maintained subsequently without leave of the Madras High
  Court.

       s. 3(15) - Madras High Court On'gina/ Side Rules -
  Or. XU/ r. 3 & 11 -Admiralty jurisdiction -Arrest of vessal
F - Issue pertaining to suit for recovery and arrest of vessa/
  and payment to be made to various creditors, wherein one
  of the creditor moving High Court of Bombay and other
  creditors moving High Court of Madras, where the vessal
  was stationed - Attachment order passed and transfer of
G decree - High Court of Madras holding that the
  disbursements be made of the sale proceeds received by
  sale of the ship-motor vessel - Division Bench upheld the
  said order - Interference with - Held: Not called for - In a

H                             1086
      PETROMARINE PRODUCTS LTD. v. OCEAN                      1087
           MARINE SERVICES CO. LTD.

suit in rem warrant of arrest of vessel is issued by the High     A
Court, all interested persons shall have a right to intervene
and lay their claim by filing an affidavit showing that he is
interested in the property under arrest - On facts, in an
admiralty proceedings, where several persons have lodged
their claim, even the attachment made by Bombay High              B
Court has to be decided only if an application for payment
of attached amount is made - Single Judge of the Madras
High Court after hearing all the parties, who had
approached the Court, passed the order - Once the decree
was transferred and transmitted by the Bombay High Court          C
to the Madras High Court, appellant could not have moved
the Bombay High Court and obtained an order without
notice to the creditors and claimants - Act of the appellant
shows that it wanted to avoid any contest of its claim by         D
other creditors/claimants - When the property was in the
custody of Madras High Court, being the transferee court
of title of priority arisen between the person having decree
in his favour and person not being the judgment debtor is
to be determined by the transferee court - Further, the           E
Bombay High Court had given liberty to the appellant to
move the Madras High Court for appropriate order for
disbursement of amount - Also the Bombay High Court
while passing the order of attachment was not aware that
the vessel was seized by the Madras High Court much prior         F
to the filing of the suit by the appellant in Bombay High
Court - Division Bench recorded the finding that Madras
High Court while deciding the issues in the suit filed under
admiralty jurisdiction considered the interest and also
priorities of all interveners and also parties to the suit; and   G
that the appellant ought to have made claim u/Or. XL/I r.
11 as also impleaded the necessary parties - It rightly held
that no court is so prestige conscious that it would stand
in the way of legitimate legal proceedings for redressal or
relief sought for by the litigant - Code of Civil Procedure,      H
1088        SUPREME COURT REPORTS               [2015] 4 S.C.R.


 A     1908 - 0. XX/ r 52.

       Shivshankar Gurgar vs. Dilip 2014 (1) SCR 18: (2014)
   2 SCC 465; Oil and Natural Gas Corporation Limited vs.
   Modern Construction and Company 2013 (10) SCR 466:
 B (2014) 1 SCC 648; Shaukat Hussain alias Ali Akram and
   Others vs. Smt. Bhuneshwari Devi (dead) by Lrs. and
   Others 1973 (1) SCR 1022: (1972) 2 SCC 731 - referred
   to.

 c                       Case Law Reference

         2014 (1) SCR 18        Referred to.     Para 26

         2013 (10) SCR 466      Referred to.     Para 26

 D       1973 (1) SCR 1022      Referred to.     Para 27

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
       6156 of 2005.

           From the Judgment and Order dated 27.11.2003 of the
 E     High Court of Madras in OSA No. 175 of 1998.

          Fereshte D. Sethna, Kuber Dewan, B. Vijayalakshmi
       Menon for the Appellant.

 F         P. B. Suresh, Vipin Nair, Udayaditya Banerjee, Vishnu
       Shankar Jain, Kushal Bolmal (for Temple Law Firm), Nikhil
       Nayyar, Subramonium Prasad, Rajiv Dalal for the
       Respondents.

 G         The Judgment of the Court was delivered by

       M.Y. EQBAL, J. 1. This appeal is directed against the
   judgment and order dated 27 .11.2003 passed by a Division
   Bench of the High Court of Madras in OSA No.175 of 1998,
 H dismissing the appeal of the appellant, upholding inter alia
     PETROMARINE PRODUCTS LTD. v. OCEAN                  1089
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

the disbursements made by Single Judge of the sale          A
proceeds received by sale of the ship in question named
as motor vessel 'Eleni'.

     2. The factual matrix of the case is that in February,
1997 Respondent No.1 filed a suit being C.S.No.97 of 1997 B
under the Admiralty Jurisdiction of High Court of Madras,
for recovery of US$ 22,705.84 against Respondent No.3
herein along with an application praying for an order of
arrest of the vessel which arrived at Port of Madras. The
High Court in terms of Order dated 27.2.1997 issued arrest C
warrant. Whereas in the Bombay High Court, Appellant
filed an admiralty suit A.S.No.27 of 1997 in March, 1997
for recovery of amount of US$ 39,712.97 i.e. the security
of Appellant's suit claim. On 19.03.1997, Bombay High
Court directed the order of arrest of Vessel M.V. Eleni.    D

     3. Meanwhile, High Court of Madras appointed
Respondent No. 2 as the Advocate Commissioner. On
25.04.1997, terms and conditions for sale were approved
by the Madras High Court. Publications with respect to the E
sale of the said vessel were made in various newspapers.
Unaware of such proceedings, Bombay High Court, on
11.09.1997, passed an ex-parte decree in the suit filed by
the appellant for a sum of US$ 50,081.74 with interest,
which was communicated to the Advocate Commissioner F
(Respondent No.2), appointed by the Madras High Court,
with a request to take note of their claim against the Vessel.
The Sheriff of Mumbai also communicated to Respondent
No.2 on 21.10.1997 that the Vessel MV ELENI was
arrested in due compliance of Warrant of Arrest dated G
18.03.1997 and 21.03.1997 passed by the High Court of
Bombay and requested them to take note of the arrest
order passed by Bombay High Court.Before the aforesaid
decree transmitted by the Bombay High Court was received H
1090      SUPREME COURT REPORTS                  (2015] 4 S.C.R.


 A by the Madras High Court on 24.1.1998, learned Single
   Judge of the Madras High Court confirmed the sale in
   favour of M/s. Jansee Steel Industry Pvt. Ltd. on
   24.10.1997. In the execution petition moved by the
   appellant in February, 1998, Bombay High Court issued
 B notice under Order 21 Rule 52 of the C.P.C., requesting
   the Madras High Court to hold the decretal sum in an
   aggregate amount of US$ 58,325.64 from and out of the
   funds deposited by M/s. Jansee Steel Industries.

 C      4. It is worth to note here that the tender of Mis. Jansee
   Steel Industries had been challenged by another company
   M/s. Bancorex by way of another suit being O.S.A.No.15
   of 1998, which ultimately was allowed on 23.4.1998 by
   Madras High Court by setting aside the confirmation of sale
 D made in favour of M/s. Jansee and the matter was
   remanded to the Single Judge to ensure that the best
   possible price is secured. Consequently, learned Single
   Judge accepted the only bid of M/s. Jansee Steel Industry
   Pvt. Ltd. for a sum of US$ 4,70,000 and they were directed
 E to pay the balance consideration within three weeks, failing
   which the earnest money deposited by them would stand
   forfeited. Advocate commissioner was also directed to
   deposit the entire amount to the credit of the suit. Madras
 F High Court confirmed the sale made in favour of M/s.
   Jansee Steel Industry Pvt. Ltd. on 05.10.1998 and ordered
   reimbursement of cost of sale, payment to the crew
   members and charges to the statutory authorities.

        5. On 25.09.1998, Bombay High Court informed the
 G passing of ex-parte decree in favour of appellant and asked
   Registrar of the Madras High Court to remit the funds lying
   attached pursuant to Order 21 Rule 52 Notice. On 7th
   October 1998, Bombay High Court made a further order
 H in favour of the appellant who filed execution petition in the
     PETROMARINE PRODUCTS LTD. v. OCEAN                     1091
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

Bombay High Court. The Registry of Bombay High Court A
sent letters dated 28.01.1999, 09.03.1999 and 11.03.1999,
requesting the Registrar of the Madras High Court to give
reply for non-remittance of the attached funds. Finally, on
03.09.1999, Bombay High Court gave liberty to the
appellant, to obtain suitable orders from the Madras High B
Court and closed the Execution Application.

    6. Meanwhile after the confirmation of the sale, the sale
proceeds were disbursed to the crew members of statutory
authorities and a direction was issued on 6.10.1998 to the C
commissioner to deposit the balance amount of Rs.
12,38, 164/-.

     7. Thereafter, appellant challenged the order dated
06.10.1998 passed by single Judge in Application No.1217        D
of 1997 in C.S.No.97 of 1997, pleading before the Division
Bench of the Madras High Court that on the service of
notice issued by the Bombay High Court under Order 21
Rule 52 CPC, the appellant was entitled to the decretal
amount alone and the amount attached ought not to have          E
been disbursed to third parties and the custody court.
namely the Madras High Court has no authority to make
rateable distribution. Per contra, it was submitted on behalf
of the respondents before the Madras High Court that the
appellant failed to bring to the notice of the Bombay High      F
Court that the Madras High Court was already seized with
the matter. Had the appellant brought to the notice of the
Bombay High Court about the proceedings entertained by
the Madras High Court, which were much prior to the suit
filed by them, the Bombay High Court would not have             G
passed the attachment order.

    8. After hearing learned counsel for the parties, Division
Bench of the Madras High Court dismissed the application
keeping it open for the appellant to lay their claim under H
1092      SUPREME COURT REPORTS                 (2015} 4 S.C.R.


 A Order XLll Rule 11 of Original Side Rules. The Division
   Bench held that once the suit is filed invoking admiralty
   jurisdiction of the Madras High Court, the suit in rem, it
   decides the interest of not only parties to the suit but also
   other parties who are interested in the property under arrest
 B or in the fund. The High Court observed thus:-

         "Madras High Court, while deciding the issues in the
          suit filed under admiralty jurisdiction has considered
         the interest and also priorities of all interveners and
 c        also parties to the suit. We follow the judgment of
         Apex Court in M.V. Elisabeth and others vs. Harwan
          Investment & Trading Pvt Ltd., Hanoekar House,
         Swatontapeth, Vasco-De-Gama, Goa, reported in AIR
          1993 SC 1014. The catena of judgments relied on by
 D       the appellant are no way useful to them. The
         appellant ought to have made the claim under Rule
          11 of Order XLll of O.S. Rules. In the ordinary course,
         no Court is so prestige-conscious that it will stand in
         the way of legitimate legal proceedings for redressal
 E       or relief sought for by the litigant. We find that
         necessary parties are not impleaded by the appellant
         herein and Jansee Steel Industries Pvt. Ltd., which
         is sought to be impleaded as seventh respondent in
         this appeal, is not a necessary party to resolve the
 F
         disputes involved in this appeal. It is not open to the
         appellant to convert the appeal against the order
         dated 05.10.1998 instead of 06.10.1998, as the leave
         was granted to file the appeal only against the order
 G       dated 06.10.1998. Liberty was granted to Appellant
         to file their claim under Order XLll Rule 11 of O.S.
         Rules."

        9. Hence, this appeal by special leave by the appellant.

 H      10. Ms. Vijaylaxmi Menon, learned counsel appearing
     PETROMARINE PRODUCTS LTD. v. OCEAN                  1093
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

for the appellant, assailed the impugned order passed by A
the Madras High Court on various grounds. At the very
outset, learned counsel submitted that the High Court erred
in holding that money lying with the Advocate
Commissioner was custodial legis. Learned counsel
contended that the High Court in the impugned judgment B
overlooked that the appellant-execution creditor attempted
to intervene in the pending admiralty suit in the Madras
High Court on 121h December, 1997 leading to an order
dated 24 1h January, 1998, whereby the appellant was
directed to work out its remedies in execution. In other C
words, the appellant was not allowed to intervene in the
pending admiralty suit in the Madras High Court. On the
contrary, the High Court held that the appellant ought to
have been intervened in the suit with its application under D
Order 42 Rule 11 of the Original Side Rules of the Madras
High Court.

     11. Ms. Menon further contended that there is nothing
in the aforesaid O.S. Rules that requires a decree holder,
who has secured a valid attachment, to seek to intervene     E
in the pending admiralty suit, particularly, when in the
previous application filed by the decree holder, an order
has already been passed directing the decree holder to
work out its remedies in execution.
                                                             F
    12. Learned counsel further contended that the High
Court overlooked the grievances of the appellant and failed
to appreciate the fact that the custody Court was acting in
a dual capacity of an admiralty Court vested with the higher
degree of responsibility and accountability upon both the G
Registrar of Madras High Court and the Advocate
Commissioner appointed in the pending admiralty suit.

   13. Lastly, learned counsel submitted that the order of
Bombay High Court dated 3rd September, 1999 at no stage H
1094      SUPREME COURT REPORTS                [2015) 4 S.C.R.


 A ever ordered dismissal of the Appellant's Execution
   Application, either before or after the disbursal of monies
   by the Madras High Court. Thus, no scope or requirement
   arose for the Appellant to challenge the Order dated 3rd
   September, 1999 of the Bombay High Court. The
 B surrounding circumstances preceding such order are
   important, viz. that faced with a brazen silence and the lack
   of explanation, since the Registrar of the Madras High
   Court failed to respond despite order of the Bombay High
   Court, the only restrained option left to the Bombay High
 C Court was to enable the appellant to urge matters before
   the Madras High Court. Ordinary remedies of contempt
   of Court in relation to non-compliance of orders of the
   Bombay High Court by the Registrar of the Madras High
   Court were available, but were rather too harsh for the
 0
   Appellant to pursue, hence the Appellant pursued its Appeal
   already pending before the Madras High Court.

         14. Mr. P.B. Suresh, learned counsel appearing for the
   respondent Nos. 1 to 4, firstly submitted that the Bombay
 E High Court by order dated 3.9.1999 had directed the
   appellant to make its claim before the Madras High Court,
   but the appellant had not challenged that order, which
   attained the finality. Moreover, the High Court of Madras
 F by order dated 27 .11.2003, had given liberty to the
   appellant to lay the claim before it under Order 42 Rule
   11 of the Rules of the Madras High Court. · Learned counsel
   then submitted that there are seven other creditors, whose
   claims are pending before the Madras High Court. Those
 G creditors are parties to the suit and they have lost their
   claim before the Madras high Court against the sale
   proceeds lying in the High Court.

        15. Learned counsel then submitted that the Madras
 H High Court being the transferee Court had jurisdiction to
     PETROMARINE PRODUCTS LTD. v. OCEAN                   1095
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

determine the inter-se priorities of all the creditors or the A
claimants, in terms of proviso to Order 21 Rule 52 of the
Code of Civil Procedure, 1908 as the vessel/ ship was sold
free from all encumbrances, being a sale conducted in an
action in rem.
                                                              B
     16. Learned counsel submitted that the appellant had
knowledge of the proceedings pending before the learned
Single Judge of the Madras High Court, where all the
creditors were seeking relief for disbursement of fund. The
appellant had chosen not to object to the said disbursement C
and not participated in the proceeding. The appellant, who
is an unsecured creditor, by standing outside the Court
cannot claim exclusively on the basis of an order of
attachment.
                                                              D
     17. We have elaborately heard .the learned counsel
appearing for the parties. It has been pleaded on behalf
of the appellant that the appellant had obtained a decree
for a sum of US$ 50,081.74 with interest from the Bombay
High Court in a suit against the judgment debtor and had E
also obtained an order of sale of a ship of the judgment
debtor which was lying in the territorial waters of India at
Madras. The said ship had also been attached by the
orders of the Madras High Court in a suit filed by
respondent No.1 for US$ 15,975.04. The Division Bench F
of the Madras High Court on 17.4.1997 appointed an
Advocate Commissioner in order to bring the said ship to
sale, with a view to preserve/prevent her from deterioration
and thereby protect her creditors. It is further pleaded that
in April, 1997 the ship was brought to sale and on G
26.5.1997 an earnest money of Rs.35,60,000/- was
received by the Advocate Commissioner from one M/s.
Jansee Steel Industries Pvt. Ltd. On 24.8.1997, the bid of
Jansee Steel Industries Pvt. Ltd was accepted and the H
1096        SUPREME COURT REPORTS                 [2015] 4 S.C.R.


 A Madras High Court confirmed the sale in its favour and.the
   balance amount was directed to be remitted. The Advocate
   Commissioner was informed about the decree of the
   appellant on 25.9.1997. On 24.1.1998, the Madras High
   Court again confirmed the sale in favour of M/s. Jansee
 B Steel Industries Pvt. Ltd. In April 1998, however, the said
   sale was set aside in appeal and a fresh sale was directed.

            18. It is appellant's case that in an execution
       application filed by the appellant, Bombay High Court on
 C      17.3.1998 issued an attachment order under Order 21 Rule
       52 of the CPC directing .attachment of a sum of US$
       58,325.64 (approximately Rs.20 lakhs) from and out of the
       funds deposited by Mis. Jansee Steel Industries Pvt. Ltd.
       until further orders of the Madras High Court. The said
 D     order of attachment was received by the Madras High Court
       on 161h June, 1998. Meanwhile, on 23.4.1998, the sale was
       set aside and a fresh tender was directed by the Division
       Bench of the Madras High Court. However, the amount
       of earnest money lying with the Advocate Commissioner
 E     was not returned to Mis. Jansee Steel Industries Pvt. Ltd.
       On 1.9.1998, Madras High Court accepted the only bid of
       M/s. Jansee Steel Industries Pvt. Ltd. and directed that the
       moneys be held over to the account of the suit. On
 F     7.9.1998, Registry of the Madras High Court effected the
       attachment and returned the notice of the Bombay High
       Court with a pro order to the Bombay High Court confirming
       that the monies directed by the Bombay High Court to be
       attached stood duly held to the credit of the appellant. On
 G     25.9.1998, Bombay High Court passed an order directing
       the Registrar of the Madras High Court to remit the funds
       lying pursuant to the Order 21 Rule 52 attachment.

       19. The appellant's case in a nutshell is that ignoring
 H the decree and the attachment of the Bombay High Court,
     PETROMARINE PRODUCTS LTD. v. OCEAN                  1097
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

the Madras High Court on 5.10.1998 paid moneys to the A
crew and other charges to other creditors who have no
decree in their favour. On 6.10.1998, on an application
filed by the Advocate Commissioner showing the
disbursements, the Madras High Court confirmed the
disbursements and directed that the balance amount be B
placed in a fixed deposit in view of the order of the Bombay
High Court which, it is specifically stated, was brought to
its notice on 6.10. 1998 only. Learned counsel vehemently
contended that the aforesaid events would show that even
though the appeilant was a decree holder and had priority C
over all other creditors, money was disbursed without there
being any adjudication of priority or dispute of title by the
Madras High Court, which disbursement could only have
been done by Bombay High Court. Learned counsel for the D
appellant also contended that Madras High Court had no
jurisdiction to deal with the moneys once the same were
attached under Rule 52 of Order 21 CPC.

     20. It is the case of the respondent that the appellant
had knowledge of the proceedings before the Madras High E
Court right from its inception and despite this, the appellant
did not participate in any of the proceedings before the
learned Single Judge and allowed orders to be passed.
Division Bench of the Madras High Court vide impugned F
judgment has, therefore, given liberty to the appellant to
make its claims before the learned Single Judge under
Order XLll Rule 11 of O.S. Rules of the Madras High Court.
It has been further contended that the appellant specifically
stated in its suit filed before the Bombay High Court that G
the subject vessel is lying in the port at Chennai and it is
only to conveniently avoid the contest with other creditors
who have all lodged their claims before the Madras High
Court the suit was filed in Bombay. Further, the appellant
was the lone claimant before the Bombay High Court H
1098        SUPREME COURT REPORTS                 [2015] 4 S.C.R.


 A     whereas all the other claimants were pursuing their claims
       before the Madras High Court, which alone has jurisdiction
       to decide on the rights of the parties and the inter se
       priorities amongst them.

 B      21. Admittedly the vessel is berthed at the Madras
   harbor and, therefore, the Madras High Court alone had
   jurisdiction to entertain any claim against the subject vessel
   as per provisions of Section 3(15) of the Merchant Shipping
   Act, 1958. The arrest of vessel by the Madras High Court
 C being the first arrest, the vessel and the sale proceeds are
   custodial legis of the said court and no proceedings in
   Bombay High Court can be maintained subsequently
   without leave of the Madras High Court. It is also not in
   dispute that after the decree got transmitted to the Madras
 D High Court, appellant had again moved Bombay High Court
   and obtained attachment order without notice to the
   creditors and claimants before the Madras High Court,
   which act of the appellant clearly exposes that it
   conveniently wanted to avoid any contest of its claim by
 E other creditors/claimants.

           22. We have gone through the relevant provisions of
       Order XLll of Madras High Court Original Side Rules: The
       said Rule reads as under:-
 F
           "Rule 3. In suits in rem a warrant for the arrest of the
           property maybe issued at the instance either of the
           plaintiff or of the defendant at any time after the suit
           has been instituted, but no warrant of arrest shall
 G         be issued until an affidavit by the party or his agent
           has been filed, and the following provisions complied
           with:

              A. The affidavit shall state the name and
 H
     PETROMARINE PRODUCTS LTD. v. OCEAN                     1099
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

       description of the party at whose instance the           A
       warrant is to be issued, the nature of the claim or
       counter-claim, the name and nature of the property
       to be arrested, and that the claim or counter-claim
       has not been satisfied.
                                                              B
       B. In a suit of wages or of possession, the affidavit
       shall state the national character of the vessel
       proceeded against; and if against a foreign
       vessel, that notice of the institution of the suit has
       been given to the consul of the State to which the C
       vessel belongs, if there be one resident in Madras
       and a copy of the notice shall be annexed to the
       affidavit.

       C. In a suit of bottomry, the bottomry bond and          D
       if a foreign language also a notarial translation            l•
       thereof, shall be produced for the

       inspection and perusal of the Registrar, and a
       copy of the bond, or of the translation thereof,         E
       certified to be correct shall be annexed to the
       affidavit.

       D. In a suit of distribution of salvage, the affidavit
       shall state the amount of salvage money awarded          F
       or agreed to be accepted, and the name and
       address and description of the party holding the
       same.

     8. In suits in rem, sevice of summons or warrant
against ship, freight or cargo on board is to effected by G
nailing or affixing the original writ or warrant for a short time
on the main mast or on the single mast of the vessel and
by taking off the process leaving a true copy of it nailed
                                                                H
1100        SUPREME COURT REPORTS                [2015] 4 S.C.R.


 A or affixed in its place.

        11. In a suit in rem, any person not named in the writ
   may intervene and appear on filing an affidavit showing
   that he is interested in the property under arrest or in the
 B fund in the Registry."

        23. Perusal of the aforesaid Rule would show that in
   a suit in rem warrant of arrest of vessel is issued by the
   High Court, all interested persons shall have a right to
 C intervene and lay their claim by filing an affidavit showing
   that he is interested in the property under arrest.

            24. In the impugned judgment, Madras High Court has
       discussed elaborately the sequence of events and reasons
       of disallowing the claim of the appellant.
 0
            25. Indisputably in admiralty proceedings, where
       several persons have lodged their claim, even the
       attachment made by Bombay High Court has to be decided
       only if an application for payment of attached amount is
 E     made. Admittedly the appellant without approaching the
       admiralty proceedings sought a declaration that it is not
       entitled to priority. Being fully aware of the development
       of the proceedings and suits in the Madras High Court, the
 F     appellant did not raise any objection. In the result, the
       learned Single Judge of the Madras High Court after
       hearing all the parties, who had approached the Court,
       passed the order. In our considered opinion, once the
       decree was transferred and transmitted by the Bombay
 G     High Court to the Madras High Court, the appellant could
       not have moved the Bombay High Court and obtained an
       order without notice to the creditors and claimants. We
       are further of the view that when the property was in the
       custody of Madras High Court, being the transferee court
 H     in question of title of priority arisen between the person
     PETROMARINE PRODUCTS LTD. v. OCEAN                 1101
     MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

having decree in his favour and person not being the A
judgment debtor is to be determined by the transferee
court. We are unable to accept the submission of the
learned counsel for the appellant that after order of
attachment under Order XX1 Rule 52 CPC, the Registry
of Madras High Court had to remit the amount to Bombay B
High Court ignoring the pendency of proceedings in the
Madras High Court.

      26. The decision in Shivshankar Gurgar vs. Dilip,
(2014) 2 SCC 465 relied upon by Mrs. Menon, learned C
counsel appearing for the appellant, for the proposition that
the executing court cannot go behind the decree is not at
all applicable in the facts of the present case. In the said
decision, while considering an order of modification of the
compromise decree by the executing court it was held that D
it will amount to modification of decree and, therefore, the
same is without jurisdiction. Similarly, the decision in the
case of Oil and. Natural Gas Corporation Limited vs.
Modern Construction and Company, (2014) 1 SCC 648,
for the proposition that in the absence of any challenge to E
the decree the executing court cannot go behind the
decree, will also be of no help to the appellant.

     27. Further Mrs. Menon relied upon a decision in the
case of Shaukat Hussain alias Ali Akram and Others vs. F
Smt. Bhuneshwari Devi (dead) by Lrs. and Others,
(1972) 2 sec 731 with regard to the power of the court
which passed the decree and the transferee court where
the decree is transferred will equally have no application
in the present case where the Madras High Court exercised G
admiralty jurisdiction.

    28. It is worth to mention here that the Bombay High
Court on 3.9.1999 gave liberty to the appellant to move
the Madras High Court for appropriate order for H
1102        SUPREME COURT REPORTS                 [2015] 4 S.C.R.


 A     disbursement of amount. The Bombay Court held that no
       further direction is required. For better appreciation, the
       order dated 3.9.1999 in the admiralty suit filed by the
       appellant is quoted hereinbelow :-

 B          "According to the office of the Prothonotary the
            position remains the same as 31st august, 1999. In
            other words, no communication has been received
            from the Madras High Court. However, Ms. Sethna,
            learned counsel appearing for the plaintiff, has very
 c          fairly brought to the notice of this Court an order
            passed by the Madras High Court on 5th October,
            1998. After noticing the orders passed by this Court,
            the Madras High Court is directed that the amount of
            Rs.12,38, 164/- should be deposited in a fixed deposit
 D          for a period of 46 days renewable periodically if
            necessary in the name of the Registrar, High Court,
            Madras to the credit of the suit. As noticed earlier,
            the plaintiff has already filed Appeal No.175 of 1998
            in the Madras High Court. In view of the above the
 E          plaintiffs are at liberty to move the Madras High Court
            for appropriate orders for disbursement of the
            aforesaid amount on the basis of the decree passed
            by this Court.
 F          In view of the above no further directions are
            required ......... "

        29. It has not been disputed by the appellant that the
   Bombay High Court while passing the order of attachment
 G was not aware about the fact that the vessel was seized
   by the Madras High Court much prior to the filing of the
   suit by the appellant in Bombay High Court. The Division
   Bench in the impugned order has recorded the finding that
   Madras High Court while deciding the issues in the suit filed
 H under admiralty jurisdiction had considered the interest and
      PETROMARINE PRODUCTS LTD. v. OCEAN                       1103
      MARINE SERVICES CO. LTD. [M.Y. EQBAL, J.]

also priorities of all interveners and also parties to the suit.   A
It was held that the appellant ought to have made claim
under Order XLll Rule 11 of the OS Rules. The Division
Bench rightly held that no court is so prestige conscious
that it will stand in the way of legitimate legal proceedings
for redressal or relief sought for by the litigant. The Court      B
also took notice of the fact that the necessary parties who
had led their claims had not been impleaded by the
appellant in the proceedings.

     30. In the facts and circumstances of the case and C
having regard to the law settled, so far the admiralty
jurisdiction of the Court is concerned, we do not find any
reason to differ with the findings recorded by the Division
Bench of the High Court in the impugned order. For the
reason aforesaid, we do not find any merit in this appeal, D
which is accordingly dismissed, however with no order as
to costs.
Nidhi Jain                                    Appeal dismissed.

                                                                   E