JUDGMENT
Marten, J.
1. This is a notice of motion by-Captain Yanovsky, the caveator, asking for an order that the decree made in Suit No. 1 of 1922 by my brother Crump on April 25, 1922, may be set aside, and that the sale made in pursuance of the said decree be also set aside. The notice of motion states that I have granted an interim injunction against completion of the sale until further order of the Court. That statement is admittedly incorrect and should be struck out. All I did was to give leave to serve short notice of motion for last Saturday.
2. The suit itself is a curious one. The application is also a curious one; and it bristles with legal points–points which are of interest from an historical aspect and also on the question of our Admiralty Jurisdiction in this Court. It also carries with it points of interest to all of us in this High Court of Bombay, viz., that the various matters arising in the exercise of the Court’s extensive jurisdiction should be carried out in a way which is befitting a High Court and which cannot be commented on adversely either by any other High Courts or by our important business community either in Bombay or Enlgand. It is partly for the reason that I am very jealous of the reputation of the Bombay High Court in this respect that I directed the Court to be kept open on Saturday last, a day which is normally a dosed day during the vacation, and that I have sat specially to-day to hear the application, which is stated to be of great urgency and of great importance to the parties before me.
3. To understand the position, I must recapitulate, shortly, what I stated on the application to expedite the trial of the other suit, No. 2 of 1922. This Ship, the Calanda, was formerly the Russian Volunteer ship Omsk. When she was under the Russian flag, the present caveator, Captain Yanovsky, was the Captain of the ship, and the present Chief Engineer and I think the Third Engineer were also officers on that ship. At that time they earned, so they say, certain sums for commission on freight and so on. The ship was subsequently purchased by a London Shipping Company and transferred to the British registry. I have not seen the ship’s certificate but that is admitted on all sides.
4. In April, 1921, there was a statutory ship’s mortgage in favour of a London firm of the name of D.L. Flack & Son, who are represented by Messrs. Payne & Co., Solicitors in this suit. The ship sailed from Cardiff and Newport in January of this year bound for Porebunder with coal. Its orders were to proceed from there to Australia in ballast and thence home with a cargo of grain. Before the ship sailed, the manager of the present British owners gave Captain Yanovsky a letter acknowledging that the English Company took over the liability for the commission, freight and so on which I have mentioned. They have already paid him £ 500 as part of the commission and there was an undertaking to pay the balance. But the letter concluded with an undertaking by the Captain not to take any action against the ship, and the letter also provided that the sum in question was to be paid on the return of the ship to the United Kingdom. Similar letters, I think on an earlier date, were given to the Chief Engineer and the Third Engineer. It is on these letters that Captain Yanovsky and the Engineer are suing in the second suit. No. 2 of 1922. They say in that suit that the under taking at the foot of each letter is in operative because the ship has been arrested in Bombay by a third party. In that suit I have expedited the trial and it has been fixed for some day early in June.
5. Now, to continue the voyage of the ship, she got as far as Porebunder and there the mortgagees of the ship took possession. I am told they had taken constructive possession in London and they took actual possession in Porebunder, where the English Captain of the ship received a cable from the owners in effect telling him to take proceedings for payment of his wages. I should have explained that when the ship became a British ship, a British Captain was employed as Captain, viz. Captain Freeman, but the former Russian Captain, the caveator, was kept on as the ship’s Supercargo.
6. Accordingly, the ship under the direction, I gather, of the mortgagees was taken possession of, and, having regard to the cable from the owners, proceeded to Bombay where these two suits were filed, No. (1) by Captain Freeman on behalf of himself as master and all the other officers and crew of the ship, and No. (2) by the Russian Captain and the Chief and Third Engineers.
7. In this first suit Captain Yanovsky was himself one of the plaintiffs, and his name is entered in the particulars to the plaint as one of the ship’s officers to whom wages were due.
8. There was at once a warrant of arrest in Suit No. 1 issued for the arrest of the ship, and it was served in the usual manner by nailing it to the main mast of the ship. Then, no appearance having been entered for the ship, the matter came on before Mr. Justice Crump on April 25, 1922, under Rule 14 which provides that–”After the expiration of twelve days from the filing of a warrant, if no appearance shall have been entered in the suit; the Attorney for the plaintiff may cause the suit to be set down for hearing.
9. Then, under Rule 15 :
If, when the suit comes before the Court, the Judge is satisfied that the plaintiff’s claim is well founded, he may pronounce for the claim and may order the property to be sold with or without previous notice and the proceeds paid into the Registry or may make such order in the premises he shall think just.
10. When the matter came accordingly before Mr. Justice Crump on April 25, be then passed a decree infavour of the plaintiff to recover a sum of Rs. 86,696 on behalf of himself as master and other officers and crew of the ship, a nd also for a further claim for further wages up to the approximate dates of their repatriation, and then the learned Judge condemned the ship in the amounts claimed without prejudice toother claims against the ship. The decree further ordered:
That on non-payment of the aforesaid amounts within two days from the date hereof, the said Sections Calanda, her papers, tackle, machinery, apparel and furniture be sold by the Sheriff of Bombay by and under the directions of this Court and the sale proceeds be applied in the first instance in payment of the said claims and costs of the suit without prejudice as foresaid.
11. Now, the caveator had previously entered a caveat against the release of the ship. He had done that under our Admiralty Rule 27. He appeared by Counsel before Mr. Justice Crump at the hearing of the suit, but Mr. Justice Crump considered that he had no locus standi, so I am told by his present Counsel. Be that as it may, no appeal was filed against that decree, nor was any application made by the caveator to the Court touching the sale of the ship or as to fixing any reserve price or anything of the sort. On the contrary, it would appear that the Captain and his Solicitor were fully aware of the sale, and actually attended it. The sale took place in fact on May 18, when the ship was sold for Rs. 52,000. It was not till Friday evening May 19th that an application was made to the Court to interfere in any way with the decree of April 25th or with the sale.
12. As regards the sale it was carried cut : by the Sheriff under Rule 36 which provides that:
Every sale under the decree of the Court shall, unless the Judge shall otherwise order, be made by the Sheriff in like manner as a sale of moveable property in execution of a decree in an ordinary civil suit.
13. What has given meanxiety in the present case is that undoubtedly, as far as I can tell, the ship has been sold at a serious undervalue. The mortgage alone on the ship last year was, I think, for £34,000, and she has now been sold for, approximately 3,500, i.e., nearly one-tenth of the sum. Seeing that her gross registered tonnage is about 7,200 and nett tonnage about 4,800, even if one puts her value as low as £5 a ton, that would amount on the nett registered tonnage to about £24,000; prima facie, therefore, it would appear that the ship should have fetched a great deal more than she has in fact fetched. Really, the price realized is approximately one which ship-builders are asking in Bombay for up-to-date motor launches, and it is really not very much, more than an expensive motor car. That is the one point of Substance here on the facts, although,curiously enough, there is no expert evidence as to the real value of the ship.
14. Now, as to the numerous points of law, I must start by picking out the one about the non-service of the writ. It is alleged by the caveator that this decree ought to be set aside on the ground that the writ in the suit has never been served on the ship, and that, consequently, the whole decree and the subsequent sale are void.
15. The answer made to this is that we are dealing here with a special jurisdiction, viz., the Admiralty Jurisdiction, and with special Rules set out on pages 319 to 325 of our Bombay High Court Rules: and that those rules in effect follow the old English Admiralty procedure under which you had a warrant of arrest and not 0 writ. It is said that the writ is an innovation so far as the English Admiralty Court is concerned, and was only introduced by the Judicature Acts 1873–1875 and that we in Bombay have kept to the old pratice which existed before the English Judicature Acts. It is further argued that there is still less reason for us to change our practice seeing that even now in our ordinary civil jurisdiction we do not begin suits by a writ, we begin by a plaint just as they used to do in the old days, and it is only after the plaint has been issued that we have a writ. Consequently, our present procedure is an ordinary procedure. It is totally unlike that which now prevails in England.
16. This argument has led to what is always of interest to me, viz., the investigation of the history of Bombay and of this High Court in particular. I regret that in a week end during the vacation when the Library is shut, I have been unable to make the enquiries which I should like to have done, and the case is too urgent for me to do so now. But it is to my mind perfectly clear that what Mr. Campbe l has stated as to the old practice, of the English Admiralty Court is undoubtedly the fact. It is perfectly clear that the old English Admiralty practice was that in general you commenced your proceedings by a warrant of arrest and not by writ.
17. In The Nautik (1895) P. 121 : 64 L.J. Adm. 61 : 11 R. 716 : 72 L.T. 21 : 43 W.R. 703 : 7 App. M.C. 591. Mr. Justice Bruce had to consider the converse ease after the date of the Judicature Act. There a writ had been served but no warrant of arrest, and the question arose whether the Court could proceed to a decree without there being a warrant of arrest. The Court held that it had jurisdiction. The learned Judge there said at page 124:–“The question arises whether, the property not having been under the arrest of the Court, the Court has jurisdiction to pronounce judgment by default. I am of opinion that it has. Service of a writ in rem, upon property within the jurisdiction of the Court, is notice to all persons interested in the property of the claim indorsed up on the writ. It is quite true that, according to the older practice, a suit in rem was commonly commenced by a warrant arrsesting the property, just as, in still earlier practice, a suit in personam was commonly commenced by a warrant arresting the person. But all that is necessary to found jurisdiction is to give formal notice to persons interested that a claim is made against them or against their property in a Court of competent jurisdiction, and that, if they do not appear to vindicate their rights, judgment may be given in their absence.
The rules of the Supreme Court directed that actions in remshould be commenced by writ, and I think the service of the writ on the property has the same effect, so far as notice to the persons interested in the property is concerned, as service of a warrant had under the former practice. To confer jurisdiction it is not, I think, necessary that the property, the subject-matter of a suit, should be actaully in the possession of the Court or under the arrest of the Court; it is enough that it should, according to the words of Lord Chelmsford, in the case of Castrique v. Imrie (1870) 4 H.L. 414 at p. 418 : 39 L.J.C.P. 350 : 23 L.T. 48 : 19 W.R. 1, ‘be within the lawful control of the State under the authority of which the Court sits.
18. A similar note about the practice will be found in Halsbury’s Laws of England, Volume I, at page 60, the article of which is in fact written by the same learned Judge Mr. Justice Bruce.
19. Then, if one turns to the modern English Rules of the Supreme Court, Order 1, Rule 1, says:
All actions which, previously to the commencement of the Principal Act (the Judicature Act) were commenced by writ in the superior Courts of Common Law at Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which, previously to the commencement of the Principal Act, were commenced by bill or information in the High Court of Chancery, or by a cause in rem or in personam in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to be called an action.
20. Then in Order 11, Rule 1 it is provided that “Every action in the High Court shall be commenced by a writ of summons.”
21. Now, turning for a moment to our own Admiralty Rules, Rule 3 provides that:
A suit shall be commenced by a plaint drawn up, subscribed and verified according to the provisions of the Code of Civil Procedure.
22. I am reading the rules which were approved by Her late Majesty in Council on January 29, 1894. R. 4:
If the suit is in rem, the Attorney may, on the paint being filed, on filing a praecipe a nd an affidavit, take out a warrant for the arrest of the property proceeded against.
23. There is not a word there as to the necessity of issuing a writ of summons. Then, as I have already pointed out, Rules 14 and 15 provide for the suit being set down for hearing and also for judgment being given after the expiration of twelve days from the filing of the warrant.
24. If, however, one turns to Rules 10; 11 and 12, there undoubtedly one will find a reference not only to a warrant but also to a writ. It is called a writ in Rule 10; a summons in Rule 11, a writ of summons in Rule 12; and a writ or warrant in Rule 13.
25. Particular stress is laid by the caveator on Rule 10 which provides that
In suits in rem no service of writ or warrant shall be required when the Attorney of the defendant agrees to accept service and to give security or to pay money in Court.
26. It is said that is the only case where you can dispense with service of the writ.
27. Then, if I may refer for one moment to the Code of Civil Procedure, if that has any particular bearing on the point, it provides in Order V, Rule 1, that
When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to he therein specified.
28. There, it will be seen that the word is “may” and not “must.”
29. Further, under earlier sections of the Code, section 4 provides that
In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction.
30. Then, under Section 122 the High Courts have power to vary the rules in the First Schedule. Section 128 enables special rules to be made on various matters including (Sub-rule (j)):
All forms, registers, books, entries and accounts which may be necessary, or desirable for the transaction of the business of Civil Courts.
31. Section 129 enables the High Courts to make such “rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.”
32. It seems to me that the Admiralty Justice diction that we possess in Bombay is a special jurisdiction, Obviously, in inland High Courts in India, such as Allahabad or the Punjab, they have no such jurisdiction. Still less is it possessed by the mofussil Courts in our Presidency. This jurisdiction is conferred on us because Bombay is one of the great sea-peats of India.
33. When I come to see how our jurisdiction arises; I find myself taken back to the Supreme Court Charter of 1823. I have not bad the time to go through all the numerous Acts, but I had a somewhat similar point to consider in another case about the exercise of our equitable jurisdiction, and there I came to the conclusion that I had to decide a certain case in accordance with the equitable jurisdiction still remaining in this Court under the Supreme Court Charter, and that this was the conjoint effect of Section 130 of the Government of India Act, 1915, Sections 8, 9 and 11 of the Indian High Courts Act, 1861, Section 18 of the Original Letters Patent of 1862; Section 19 of the Amended Letters Patent of 1865; and certain other clauses of the Supreme Court Charter, 1823. This is rather a cumbrous mode of ascertaining jurisdiction, but it appeared in that case to be the effect of legislation by reference extending over nearly a century.
34. Turning next to the Supreme Court Charter of 1823, one finds from the preamble that in 1753 or earlier the Mayer’s Court of Bombay was established; and that in 1797 there was a Recorder’s Court which was given full power, amongst ether things, “to exercise Admiralty Jurisdiction.” Then, under the Act of 1823 or 1824 a Supreme Court at Bombay was established with full power to exercise, inter alia, Admiralty Jurisdiction, and then comes the Letters Patent under that Charter.
35. It would rather seem from these Letters Patent that the Home authorities wished to be very careful to point out the proper procedure for this new Court. They set out the general jurisidiction of the Court under Clause 23 of the Charter. I should say that the clauses are not numbered in the original Charter, but I have numbered them beginning from the operative part and leaving out the preamble. Clause 26 provided that proceedings should bra commenced by a plaint or bill in writing… “whereupon the Court shall. issue a summons, or precept in nature of a summons, in writing. to be prepared in manner above mentioned, directed to the said Sheriff, and containing a short notice of the cause of action set forth in the said plaint, and commanding the said Sheriff to summon the person against whom the said plaint shall have been filed, to appear, &.”
36. Then, Clause 31 gave power to the Court to order the Sheriff to arrest parties insults above Rs. 150. I gather this was forthwith after the plaint, and if so it carries out what Mr. Justice Bruce said in the case I have already cited.
37. Then, Clause 48 provided: “That the said Supreme Court of Judicature at Bombay shall be a Court of Admiralty, in and for the said Town and Island of Bombay, and the limits thereof,” and it gives the Court full power and authority to hear and determine a 11 causes and so on the cognizance whereof doth belong to the jurisdiction of Admiralty, and to “proceed summarily there in, with all possible despatch, according to the “Course of our Admiralty of England, without the strict formalities of law, considering only the truth of the fact and the equity of the case.”
38. Then, under Clause 49, there was also power “to arrest, or cause or comma nd to be arrested, according to the civil law, and the ancient customs of our High Court of Admiralty… of…England, all ships, persons, things, goods, wares, and merchandises for the premises, and every of them and for other causes whatsoever concerning the same wheresoever they shall be met with or found in or throughout the said districts and jurisdictions aforesaid; and to compel all manner of persons in that behalf, as the case: shall require, to appear &c, and “to compel witnesses,… to give evidence and to proceed in such cause or causes according to the civil and maritime laws and customs, as well at the instance of promotion of parties as of office, mere or mixed, as the case may requite; and to promulgate and interpose all manner of sentences and decrees, and to put the same in execution, according to the Course and order of the Admiralty, as the same is now used in… England.”
39. We know that in the year 1861 or thereabouts the Supreme Court and the East Indian Company’s Courts were amalgamated and became our present High Court. And then began the Indian High Courts Acts and the Charters which I have referred to. They will be found to continue in effect our Admiralty Jurisdiction, and there are Clauses, 1 think, keeping alive our previous jurisdiction under the Supreme Court’s Charter at any rate in certain particulars. I may refer in particular to Sections 106 and 130 of the Government of India Act, 1915, and to Clauses 32 and 33 of the Amended Letters Patent of 1865.
40. Accordingly, I have been referred to some old Admiralty Rules of this Court of 1867, some of which are very much to the same effect as what we now have, viz., Rule 3: “Suits shall be commenced by a plaint” R. 4 about taking out a warrant for the arrest: and then there are provisions in Rules 12, 13 and 14 for the sale and so on.
41. Many years later came the Colonial Courts of Admiralty Act, 1890. Our present rules were approved by the Privy Council in 1894.
42. I think, therefore, that it is quite natural to find that our Courts should maintain the old Admiralty procedure arid should not think it necessary to provide that in all Admiralty cases a writ should be issued in addition to a warrant for arrest. There was no reason for making that change here, because as I have already pointed out, suits even now do not begin here by writ but by plaint. Therefore, a warrant for arrest was notice to all the world–and certainly notice to the ship’s agents. It is perhaps as good a notice as you can effect, for the agents or owners find the ship seized by the Sheriff. Further, the warrant for arrest provides for a citation calling upon all parties interested to appear before the Court and prosecute their claims. So, apart from the one being called a writ and the other being called a warrant, what is actually effected is in every way as good as any writ.
43. Under these circumstances, I think, that we are not bound by the provisions of the Civil Procedure Code in this case. We are governed merely by our own Rules dealing with our own special Admiralty Jurisdiction. In my judgment it is not essential under our Admiralty Rules to issue a writ of summons, in addition to issuing a warrant for arrest, Rules 3, 4, 14 and 15 do hot say so And the explanation of the reference to a writ in Rules 10 to 14 is, I think, that they have been taken bodily from the present English Rules–Order IX, Rules 10, 12. 13 and 14–and that the draftsman has been careless in repeating the reference to writs. A similar mistake las been made in Rule 127 dealing with Third Party Procedure in ordinary suits, where the English High Court Rules have been copied including a reference to a Statement of Claim which does not exist in Bombay, and on the supposition that an action commenced by writ which is not the fact here. As regards our Admiralty Rules the Bombay draftsman has added some new English rules to our old 1867 rules, and las omitted to make the former entirely consistent with the old rules which are the main rules. I do not mean to say that a writ can never be issued in an Admiralty suit. My decision is that it is unnecessary if a warrant of arrest is issued.
44. I, therefore, hold that the present application in so far as it is based on the decree being invalid because no writ was actually served, fails.
45. I should nave added that this precise point was not taken before Mr. Justice Crump, but I understand he did consider whether it was necessary to serve the writ upon the owners. It was apparently said that the Captain was the person to enter an appearance on behalf of the ship, and that, therefore, no writ was necessary as he was plaintiff. It was also said that it was unnecessary to serve the writ on the mortgagees, because they were there and knew all about it. In what I have said, therefore, I am in no way hearing an appeal from Mr. Justice Crump. I The precise point that has been put before me to day was not taken, so far as I understand, and was not present to the mind of the learned Judge, nor was it brought to his attention by the office or any of the parties concerned.
46. The next point of substance that is raised is this. It is said that, even if the decree for sale is good, there has been a material irregularity in carrying out the sale and that I ought to set it aside. One irregularity is this: that the caveator having filed his caveat could only be got rid of by an express order of the Court and that, that not having been done, the Sheriff has been entirely wrong in abandoning possession of the ship.
47. First of all, I will take the point about the caveator. It is purely technical and the surprising thing is that the caveator is himself a plaintiff. He is one of the plaintiffs, and the decree in the suit actually awards him a part of the sum chimed. Further, the decree was made in his presence, there was no protest against it, he never came before the Judge in Chambers asking that the sale should be conducted in a particular way; and the evidence is that he actually attended the sale. Now he comes forward as a caveator to protest against the decree which he himself got, and to protest against the mode of sale which he has known all along would be carried out in a particular way. Further than that, he is not in a position to pay a single p(sic)e into Court. The present position is that the old crew have been paid Off, and the new crew are engaged and that the ship at present has got steam up and is ready, so I am told, to steam out of Bombay harbour.
48. If I was to accede to the present application to order the re-arrest of the ship, I have not at the present moment any idea who would be prepared to pay the necessary costs and charges of maintaining her. I am told that the ship’s expenses are about £100 a day at any rate while the crew are on board, and even if she went into Dock, there would be still substantial charges running against her.
49. The present position is this that the plaintiffs in the suit other than Captain Yanovsky have a (sic)l been paid off and they have no longer any interest in the present suit. The ship’s purchasers say they have bought the ship at a sale by order of the Court, and they are entitled to rely on that sale. Then, as records the mortgagees, they have been served with the notice of motion, and though they do not, strictly speaking, appear before me to-day, still their Solicitor has informed me as amicus curiae that he is without any instructions, and iris position is that, without further instructions, his clients have now no interest in the matter. The ship has been sold and he is not prepared without any further instructions to put down any money or take any further proceedings.
50. The practical result, therefore, is that this applicant is not able to give any security. In an ordinary civil suit on the original side a foreign plaintiff would ordinarily be required to give security for costs. The present applicant is liable under Rule 28 to pay damages and costs if. he delays the release of the ship without good and sufficient reason. But in fact he is not able either to bring any money into Court or really to bring forward anybody who is prepared to do it. How can I, in that state of affairs, take the serious step of Setting aside all that has been done and directing the ship to be delayed for, may be, another three or four weeks?
51. As regards the alleged irregularity, I think the most that can be fairly urged here is this: that the Sheriff has carried out too literally what he is directed to do under the rules. It would not be fair on me to pass adverse comments on his action, first of all, because I have not heard him, and, secondly, because he has been acting on the strict wording of the rules, and there is nothing in the decree that has been passed or in any other order the terms of which he has in any way violated, so far as I am aware.
52. I have already pointed out that under Rule 36 he has to carry out the sale just like a sale of moveable property in an ordinary civil suit. There is no provision there for a reserve price: there is no provision for a commission of appraisement, as will be found in English Admiralty Practice (see Halsbury’s Laws of England, Vol. I, p. 123, para. 268), nor has he thought it advisable to grant any delay in payment, of the purchase-money. The conditions at the auction were that any purchaser had to pay down cash at once. But although from a business point of view the result may be regrettable, and although it may afford grounds for consideration by the Rule Authorities as to whether these rules should not be altered in this respect, I cannot say that there is any irregularity of such a character that I ought to set aside this sale.
53. On the contrary, one knows that under our ordinary provisions (I am referring for a moment to the Code) where moveable property is sold by the Court by public auction, Order XXI, Rule 77, says:
On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.
54. Then Rule 78 says:
No irregularity in publishing or conducting the sale of moveable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hands of any other person, may institute a suit against him for compensation: or (if such other person is the purchaser) for the recovery of the specific property and, for compensation in default of such recovery.
55. It is also clear from the cases set out in Mulla’s Civil Procedure Code, 7th Edition, at page 181, that, speaking, generally, the Court does, not interfere with a. sale under a decree of the Court, For instance, if a sale has been made under an original decree of the Court it will still hold good and will not be set aside notwithstanding that the decree may subsequently be reversed on appeal.
56. Mr. Wadia also cited to me out of the English and. Colonial Digest a case, The Tremont (1841) 1 W. Rob. 163, which stated that a decree of the Court affecting the sale of a ship was valid irrespective of an entry in the registry.
57. It did occur to me whether I ought to set aside this sale under Section 151 of the Civil Procedure Code which enables the Court in the exercise of its inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, I say this because I cannot overlook the fact that in the practice which I am more familiar with, viz., sales of real estate by the Court, the practice is for the Court to fix a reserve price and also to approve the conditions of sale. Further, the sale is not absolute until it has been confirmed by the Court. That is our practice in, Bombay as also in, the Chancery Division in England.
58. But I have got to take the Bombay Admiralty Rules as I find them, and Rule 36, which I have mentioned, is not a new and untried rule. It is in almost exactly similar terms to Rule 39 of the old Rules of 1807.
59. Under the above c rcumstances, I am not prepared to exercise any jurisdiction. I may have to set aside this sale on the ground of any irregularity, or on the ground of the sale being at an under value. Even if I was disposed to exercise this discretionary jurisdiction. I should only do it if I had some security, if not for the payment of the purchase-money corresponding, to what has been paid by the purchaser, at any rate for some substantial amount towards costs and the demurrage of the ship. But, as I have already pointed, out, I am absolutely without any financial help from anybody whatever in this Court. in that respect, should such an order be rede.
60. Then, as regards the point about the caveat and that the Sheriff had. no right, to abandon possession of the ship without the caveat being discharged, If am of opinion that the caveator is not entitled to raise that point. He was in fact, present before the Court:, he was actually one of the plaintiffs who obtained this decree: and. I do not think it is, open to him now to contend that this decree of the Court which purported at any rate to be a decree free from incumbrances was in effect subject to the claim which he has put forward,
61. In the result, therefore, the motion will be dismissed with costs.