JUDGMENT 1. THE solicitors for the Commissioners for the Port of Calcutta, hereinafter referred to as the Commissioners, took out this notice of motion on 17 January 1967. The orders asked for are as follows :- First that directions be given for service of the notice on the Collector of Customs and also on Messrs. Khanbhai esoofbhai, Darukhana, Bombay, the purchaser of the vessel s. s. "ray MAYA-BUNDER" and to the Master of the vessel. Secondly, that directions be given on the Master of the vessel and to Messrs. Khanbhai esoofbhai to remove the vessel or dismantle the vessel upon payment to the commissioners of the sum of Rs. 78,308. 33 being the statutory dues and charges of the Commissioners up to September 1966. Thirdly, that in default of payment of the statutory dues and charges of the Commissioners within one week from the date of the orders to be passed, leave be given to the commissioners to exercise their statutory rights under section 121 of the Calcutta Port Act, 1890 and to take all steps relating thereto. Fourthly, that direction be given to the Collector of Customs to distrain and/or arrest the vessel s. s. "ray MAYABUNDER" and the tackel, apparel and furniture belonging thereto and/or to detain the vessel until the dues of the Commissioners amounting to Rs. 78308. 33 are paid. Fifthly, that in case the sum of Rs. 78,308. 33 remains unpaid for five days next after such distress or arrestment is made direction be given on the Collector of Customs to cause the vessel so distrained or arrested to be sold and to apply the sale proceeds to satisfy pro tanto the claims of the Commissioners. Sixthly, an injunction restraining Messrs khanbhai Esoofbhai, their servants, agents and assigns from removing the vessel and/or from dismantling the vessel and or from removing the dismantled parts or portion thereof and from taking any step for the removal and or dismantling or removing any dismantled part of the vessel without paying the dues of the Commissioners amounting to Rs. 78,308. 33. 2. THE grounds in support of the notice are the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967. 78,308. 33. 2. THE grounds in support of the notice are the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967. In that affidavit it is alleged that on or about 30 September 1965 an application was made by some of the crew of the vessel s. s. "ray MAYABUN-DER" under section 145 of the Indian Merchant Shipping Act for non-payment of wages and the Presidency magistrate, 6th Court. Calcutta ordered the seizure and sale of the vessel by public auction on 7 November 1965. The Commissioners came to know of the said order on 14 October 1965 from newspaper reports. A sum of Rs. 46,428. 33 was due and owing by the vessel to the Commissioners as on 31 August 1965. By letter dated 9 September 1965 the Commissioners had called upon the Master of the vessel to pay the said sum. The Master refused to pay the said sum. On or about 18 October 1965 the Deputy Chairman of the Commissioners applied to the Collector of Customs to distrain the vessel for recovery of the dues under section 121 of the Calcutta Port Act. On 1 November 1965 the additional Collector of Customs instructed the Commissioners to make the necessary application in the court of the presidency Magistrate. On 3 November 1965 an application was made by the Commrs. in the Court of the Presidency Magistrate. On 4 November 1965 the plaintiff in this Admiralty Suit made an application in these Court of the 6th presidency Magistrate to vacate the order dated 30 September 1965. On 12 November 1965 an order was made by the 6th Presidency Magistrate staying the operation of the said order for sale and directing the parties including the commissioners to move this Court. On 10 December 1965 the commissioners filed a suit in this court being suit No. 2164 of 1965 claiming a decree for Rs. 46,428.33 covering 16 bills for the Commissioners' charges for the period ending on 31 August 1965. 3. ON 17 January 1966 an application was made by the plaintiff in the Admiralty Suit for an order for sale of die vessel with the direction that out of die proceeds of sale the unpaid wages of the seamen would be paid and that the balance amount would be deposited with the State Bank of India pending the disposal of the suit. 4. 4. SOMETIME in the month of February 1966 the commissioners apprehended that the condition of the vessel was deteriorating and if the vessel were to capsize or sink at her site of Berth No. 29, Kidderpore Dock, the berth would be unusable and would cause obstruction or difficulty of navigation. The Commissioners thereafter on 17 February 1966 took out a notice of motion for an order to intervene in this suit and also an order directing the sale of the steamship "ray MAYABUNDER", its tackle, apparel and furniture by the Marshal and for an order that the ship be forthwith removed from Berth No. 29, Kidderpore Dock, and further an order that the proceeds of sale be held subject to further orders of this court and that the proceeds of sale would not be disbursed except under orders of this court and upon notice to the Commissioners. On 8 March 1966 an order was made on that application and the Commissioners were allowed to file written statement without prejudice to the contention of the plaintiff in Admiralty suit that the Commissioners had no right to intervene and orders were made directing sale of the ship and the removal of the ship from Berth No. 29, and holding of proceeds of sale subject to further orders of the court and prohibition of the disbursement except upon notice to the Commissioners. All the orders asked for by the Commissioners were made with the modification that unpaid wages, of the seamen were to be paid out of the proceeds of sale in accordance with the order dated 17 January 1966 and removal was to be made after the sale. The order further stated that in selling the property the Marshall would make one of the express terms of sale that the vessel must be removed from the Berth within 72 hours after the sale. On 12 May 1966 a decree was passed in the Commissioners' suit for a sum of Rs. 46,428. 33 with interest thereon at the rate of 6 per cent per annum. 5. ON or about 14 October 1966 the vessel was sold by the Marshal of the Court to Messrs Khanbhai Esoofbhai. On or about 17 October 1966 the commissioners received a letter from Messrs B. R. Gupta and Sons asking for permission of the Commissioners to start dismantling. 6. 5. ON or about 14 October 1966 the vessel was sold by the Marshal of the Court to Messrs Khanbhai Esoofbhai. On or about 17 October 1966 the commissioners received a letter from Messrs B. R. Gupta and Sons asking for permission of the Commissioners to start dismantling. 6. IN paragraph 15 of the affidavit on behalf of the Commissioner it is alleged that because of the intervention of the annual vacation the commissioners were unable to obtain legal opinion as to the protection of statutory rights of the Commissioners and thereafter the Commissioners upon advice addressed a letter dated 9 January 1967 to the Master of the vessel and to Messrs Khanbhai Esoofbhai and Messrs B. R. Gupta and Sons. In the letter it is alleged that: in addition to the sum of Rs.46,428.33 for which a decree had been passed in. Suit No. 2164 of 1965 a further sum of Rs.31,880.00 became due to the commissioners in respect of the said vessel I from 1 September 1965 to 30 September 1966. The Commissioners contended that the aggregate amount of Rs.78,308.33, was the liability of the vessel and under the provisions of section 121 of the Calcutta Port Act the Commissioners were entitled to have the vessel distrained or arrested and detained until the dues of the Commissioners were paid. The Commissioners further contended that dismantling of the vessel without payment of charges would affect the statutory rights of the Commissioners under section 121 of the Calcutta Port Act. By letter dated 28 December 1966 Messrs B. R. Gupta and Sons had already contended that they had purchased the vessel free from outstanding dues including Commissioners' dues and in that letter it was also alleged that in the presence of Commissioners representative it was confirmed before the sale that the Commissioners' liability of the vessel would be paid by the Marshal from the proceeds of sale. The commissioners in their letter dated 9 January 1967 denied and disputed the contentions of Messrs B. R. Gupta and Sons. 7. ON these allegations it is contended that the Commissioners have right under section 121 of the Calcutta Port Act to have the vessel detained and sold through the Collector of Customs and to have the dues paid out of the proceeds of sale. 7. ON these allegations it is contended that the Commissioners have right under section 121 of the Calcutta Port Act to have the vessel detained and sold through the Collector of Customs and to have the dues paid out of the proceeds of sale. The Commissioners also submit that the statutory power confers a lien in favour of the commissioners and the Commissioners intend to enforce the lien for the protection of statutory dues and charges, 8. THE application is opposed by Messrs B. R. Gupta and Sons. They rely on the affidavits of Radheshyam gupta affirmed on 25 January 1967 and 3 February 1967. The application is also opposed by Khanbhai Esoofbhai. They rely on the affidavit of Abbas Khan Bhai affirmed on 25 January 1967. The application is also opposed by Surendra Overseas Limited who rely on the affidavit of Jit Paul affirmed on 3 February 1967. There is an affidavit in reply of durga Charan Mukherjee on 9 February 1987. Messrs B. R. Gupta and Sons purchased the vessel from messrs Khanbhai Esoofbhai and they rely on the receipt dated 15 October 1966 granted by Messrs Khanbhai Esoofbhai in their favour. Messrs B. R. Gupta and Sons paid Rs. 3,33,000/- towards purchase price of the vessel "ray MAYABUN-DER". Messrs B. R. Gupta and Sons undertook liability to pay the commissioners' charges as from 15 October 1966. Messrs B. R. Gupta and Sons contended that the Commissioners are entitled to be paid their dues if any from the proceeds of sale held under orders made by this Court. Messrs B. R. Gupta and Sons referred to certain correspondence which are annexed to the affidavit of radheshyam Gupta affirmed on 3 February 1967. In the letter dated 18 October 1966 Messrs Khanbhai Esoofbhai wrote to the Commissioners that the dismantling of "ray MAYABUNDER" would be carried on by Messrs B. R. Gupta and Sons and the Commissioners ware requested to grant necessary permission and to realise port charges from that date of sale from Messrs B. R. Gupta and Sons. Messrs B. R. Gupta and Sons had written a letter on 17 October 1966 to the Marine Department of the commissioners asking for dismantling of "ray MAYABUNDER". Messrs B. R. Gupta and Sons had written a letter on 17 October 1966 to the Marine Department of the commissioners asking for dismantling of "ray MAYABUNDER". The Commissioners by letter dated 15 November 1966 acknowledged the letter of Messrs B. R. Gupta and Sons dated 17 October 1966 and it was stated that permission to break up the vessel be considered after B. R. Gupta and Sons had complied with the requirements, namely, first that the Collector of Customs and the principal Officer, Mercantile Marine Department, would state that there was no objection to the breaking up of the vessel, and secondly B. R. Gupta and Sons were to produce proof of ownership of the vessel, and thirdly the details of the breaking up of the vessel and the time to be employed in that behalf were also to be communicated to the Commissioners. On 1 December 1966 B. R. Gupta and Sons wrote to the Marine Department of the commissioners that they had already submitted proof of ownership and Messrs khanbhai Esoofbhai had written to the commissioners in that behalf and B. R. Gupta and Sons also relied on the receipt granted by Messrs Khanbhai Esoofbhai acknowledging payment of price paid by B. R. Gupta and Sons for purchase of the vessel. They also stated that they had obtained clearance of the ship from the Collector of Customs and five months and a half would be required for breaking up of the vessel. On 13 December 1966 the Commissioners wrote to the Collector of Customs to confirm that the Collector of Customs had no objection to the breaking up of the vessel. On 26 December 1966 the Commissioners wrote to B. R. Gupta and Sons that a sum of Rs. 78,308. 33 was due on account of the Commissioners' charges and since the amount had not been paid and the High Court was closed B. R. Gupta and Sons were asked to wait until the reopening of the court. On 28 December 1966 B. R. Gupta and Sons wrote to the Commissioners that Messrs Khanbhai Esoofbhai had purchased the vessel free from outstanding dues and in the presence of the representatives of the Commissioners it was confirmed before the sale that the liabilities of the vessel would be paid by the Marshal from the proceeds of sale. On 28 December 1966 B. R. Gupta and Sons wrote to the Commissioners that Messrs Khanbhai Esoofbhai had purchased the vessel free from outstanding dues and in the presence of the representatives of the Commissioners it was confirmed before the sale that the liabilities of the vessel would be paid by the Marshal from the proceeds of sale. The Commissioners on 9 January 1967 wrote to B. R. Gupta and Sons that the sum of Rs. 78,308.33 was due and the Commissioners under section 121 of the Calcutta Port Act were entitled to have the vessel distrained and sold. 9. THE affidavit on behalf of Messrs Khanbhai Esoofbhai supports the allegations made by B. R. Gupta and Sons. The plaintiff, Surendra (Overseas) Limited, who relies on the affidavit of Jit Paul alleges that the statements contained in the third sentence of paragraph 16 of the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967 are true. The third sentence in paragraph 16 of the affidavit of Durga Charan Mukherjee is that he has been informed by Sri Ranjan Kumar Mitra, Solicitor for the Commissioners who represented the Commissioners in all the legal proceedings in this court in the suit that there was no confirmation about payment of the Commissioners' dues in respect of the said vessel from the sale proceeds as alleged or at all. Jit Paul in his affidavit further alleges that there was no confirmation about payment of the Commissioners' dues out of the sale proceeds as wrongly alleged on behalf of the purchaser B. R. Gupta and Sons. Jit Paul further alleges that: there could be no such confirmation as the Commissioners had been added as; party-defendants to the Admiralty suit on tentative basis, that is to say, without prejudice to the question, whether the Commissioners were to be parties to the suit. 10. DURGA Charan Mukherjee in his affidavit-in-reply affirmed on 9 February 1967 alleges that at the auction sale the claim of the Commissioners was not discussed and that the Marshal, did not have any right or authority to make any declaration and the Commissioners are not bound by the same. The sale on 15 October 1966 to B. R. Gupta and Sons is also not admitted. The sale on 15 October 1966 to B. R. Gupta and Sons is also not admitted. The further allegations in the affidavit-in-reply are that in addition to the right of the Commissioners to be paid their dues from the proceeds of sale held by the Marshal, the Commissioners have an independent and statutory right to realise and recover their dues from the vessel and that in the present application the Commissioners are seeking the help of the court in enforcing their statutory right. The Commissioners filed a written statement in the suit and in subparagraphs (g) and (h) of paragraph 2 of that written statement the commissioners contend that by and under the provisions of section 121 of the Calcutta Port Act the Commissioners are entitled to have the vessel distrained or arrested and detained until the dues of the Commissioners are paid in accordance with the statutory provisions and in the alternative the Commissioners state that they have the first and paramount charge on the sale proceeds of the vessel on account of the statutory dues and charges for the said sum of Rs.31,880 and for the decretal dues and for further statutory dues and charges accruing since October 1, 1966 in respect of the vessel. 11. REFERENCE may be made to three orders passed in the suit. An order was made on 17 January 1966. That order was made pursuant to the application of the plaintiff, that the Marshal would sell by public auction the vessel 'apj Aruns' known as S.S. Ray Mayabunder to the best purchaser or purchasers and that prior to such sale a proclamation would be made under the provisions of Order 21, rule 66 of the Code and such proclamation would be settled and approved by the Master of the court and the Marshal would out of the proceeds of sale to come to his hands retain and pay his usual commission and the marshal would out of the net sale proceeds pay the unpaid charges of the seamen as mentioned in annexure "e" to the petition of the plaintiff and the Marshal would hold that balance of the net sale proceeds till the disposal of the suit and the Marshal would deposit the balance with the State Bank of India in fixed deposit for 91 days. The second order is dated 8 March 1966 to which reference has already been made, 12. The second order is dated 8 March 1966 to which reference has already been made, 12. SOME correspondence passed between the Marshal and Messrs Orr Dignam and Company in the month of August 1966. The matter was mentioned on 31 August 1966. The matter appeared in the daily list. The third order that was made on 31 August 1966 was that the plaintiff would pay all charges, costs and expenses of the Port authorities for making the vessel afloat in the first instance and the plaintiff would be repaid such sums, if any, out of the sale proceeds. In view of the urgency no valuation need be made and the marshal was to sell the vessel forthwith by public auction. Counsel on behalf of the commissioners relied on section 121 of the Calcutta Port Act and contended that the Commissioners were entitled to an order as asked for by reason of the provisions contained in section 121 of the Calcutta Port Act. It is enacted in section 121 that if the Master of any vessel in respect of which any tolls, dues, rates, penalties or charges shall be payable under the Act or any rules or orders, shall refuse or neglect to pay the same, it shall be lawful for the Commissioners to apply to the Collector of Customs of the Port of Calcutta and such Collector shall distrain or arrest of his own authority such vessel and the tackle, apparel and furniture belonging thereto and detain the same until the amount so due to the Commissioners shall be paid and in case any part of the tolls, dues, rates, penalties or charges or of the cost of the distress or arrestment shall remain unpaid for the space of five days next after any such distress or arrestment shall have been made, the Collector of Customs may cause the vessel or other things so distrained or arrested to be sold and with the proceeds of such sale may satisfy such tolls, dues, rates, penalties and costs including die costs of sale remaining unpaid, rendering the surplus to the Master of such vessel on demand. 13. 13. COUNSEL for the Commissioners relied on the decision in (1) The Emilie Millon, reported in (1905) 2 KB 817, and the decision of the House of Lords in (2) Mersey Docks and Harbour board v. Hay and others, reported in 1923 AC 345, in support of the proposition that the provisions contained in section 121 of the Calcutta Port Act gave the Commissioners the statutory power to detain the ship and the power was in the nature of a Possessory lien and the Commissioners were entitled to enforce that lien by recourse to distraint and sale. In the case of Emilie Millon, Mersey Docks and Harbour Board, who were he owners of the docks claimed certain dock tonnage rates in respect of the vessel and contended that the vessel could be detained until the rates had been paid. The vessel arrived at the Port of Liverpool. When the ship entered the dock wages were due from the owners to the Master and the crew. The Master and the crew had a maritime lien on the ship in respect thereof. While the ship was in dock an action in rein was brought by the Master and the crew for the enforcement of the maritime lien. The Master and the crew recovered judgment in that action. An order was made for sale of the ship by the Marshal of the court. At this time dock tonnage rates in respect of the ship were due to the Mersey Docks and Harbour Board who claimed under section 253 of the Mersey Dock Acts Consolidation Act to detain the ship until such rates were paid, A summons was taken out calling upon the Mersey Docks and Harbour Board to show cause why the sale should not be sanctioned and why the lien of Mersey Docks and Harbour Board should not be transferred from the ship to the fund when in court. An order was made that the sale of the ship be confirmed and the vessel be delivered to the purchaser free from all claims and demands on payment of the purchase money into court. The Mersey Docks and Harbour Board appealed against the order. The Mersey Docks and harbour Board relied on sections 248, 253 and 254 of the Merssey Dock Acts consolidation Act. The Mersey Docks and Harbour Board appealed against the order. The Mersey Docks and harbour Board relied on sections 248, 253 and 254 of the Merssey Dock Acts consolidation Act. Section 253 of the Act stated that where dock tonnage rates remained unpaid the Board might cause such vessel to be detained until rates had been paid. Section 254 of the Act gave the Board a right, if rates were not paid, to apply to a justice, who might issue warrant to distrain the vessel. It was held that section 253 gave the Board the right to detain the vessel until the dock dues were paid and nobody could against the will of the Board, undo or annul that statutory provision. The order which had been made by the trial court was not upheld because the order deprived the Board of the right to detain the vessel if rates were not paid. It was said that if the vessel had been allowed to leave the dock, the Board would have been left to make a futile claim against the fund in court because the Board would have no lien or right against the fund in priority to other claimants. 14. THE other decision in the Mersey Docks and Harbour Board v. Hay. (supra), turned on the construction of section 94 of the Mersey Dock Acts Consolidation Act, 1858 which conferred a right on the Board to detain the vessel until damage done by a vessel do the docks had been paid. The steamship Countess was lying in a dock belonging to the Board. The damage done to the Board's dock amounted to a large sum. The Board detained the Countess under the statutory power. Various actions had been commenced by the barge owners and shipowners to limit the liability. An action was also commenced against the buyer for delivery up of the vessel and damages for detention. The vessel was released on payment by the shipowners into court 5500 representing the statutory amount of the liability and expenses incurred by the Board in connection with the repair and detention of the vessel. The Board claimed payment of their claim for damages out of the fund in court in priority to the claims of the barge-owners by virtue of their right to detain the vessel. The barge-owners claimed that the fund ought to be distributed rate-ably among the several claimants. The Board claimed payment of their claim for damages out of the fund in court in priority to the claims of the barge-owners by virtue of their right to detain the vessel. The barge-owners claimed that the fund ought to be distributed rate-ably among the several claimants. It was held that the exercise by the Board of their statutory powers to detain the ship conferred on them a possessory lien and the court in distributing the statutory amount of the shipowner's liability rate-ably among the claimants ought to have regard to the priorities as well as to the amounts of the claims. In the Mersey Docks and Harbour Board case (1923 Appeal Cases 345), Lord Birkenhead referred to the decisions in The Emilie Mission (1905) 2 KB 817 and the observations of Collins M.R. that the only protection of section 253 was the right to detain the vessel until the dock dues were paid and nobody could against the will of the Board undo or annul that statutory provision. In the Mersey Docks and Harbour Board case reference was made to sections 503 and 504 of the Merchant Shipping Act, 1894. Sections 503 and 504 of the Merchant Shipping Act of 1894, limit the liability of shipowners where without their fault, loss or damage is caused to any vessel and the owner of the ship which caused the damage may apply to the High Court for determining the liability of the defaulting ship in respect of lien or damage to vessels or goods and the rateable distribution among several claimants. In the Mersey Docks and Harbour Board case it was contended that the provisions of Mersey Docks Consolidation Act which conferred certain powers on the Board to detain the vessel were affected by sections 503 and 504 of the Merchant Shipping Act of 1894. Lord birkenhead repelled the contention and held that the power of the Board to detain a ship until damage was paid or a deposit was made could only be put an end by appropriate procedure of payment on the part of the ship owner and that the exercise of statutory power to detain conferred a possessory lien and that lien could be relied upon as justifying detention until actual payment. 15. 15. THE two decisions on which counsel for the Commissioners relied were in aid of the contention that the Commissioners had power to detain the vessel and had a possessory lien on the vessel and until the dues of the commissioners were paid the vessel could not be released. 16. IT is necessary at this stage to notice the distinction between maritime-lien on the one hand and contractual or' possessory or statutory lien on the other hand. Maritime lien is stated in Halsbury's Laws of England, 3rd Edition, Volume 35, paragraph 1202, page 781 as a claim or privilege upon a mar time res in respect of service done to or injury caused by it and such lien does not import or require possession of the res for it is a claim or privilege on the res to be carried into effect by legal process. A maritime lien travels with the res into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when called into effect by the legal process of a proceeding in rem relates back to the period when it first attached. It follows that maritime lien does not depend on possession and is enforceable against anyone into whose hands the thing to which it is subject may fall. A maritime lien may arise through a contractual obligation where in return for services rendered to the ship the master executes a bottomry bond on the ship and cargo or a respondentia bond on the cargo alone. Maritime lien also originates with liability arising from damage done to the ship by any vessel. These liens remain inchoate until enforced by an action in rem. Maritime lien is also said to be a lien arising at common law. Maritime lien will not attach to a certain class as for example any vessel used for public purpose. Common law lien on the other hand arises in relation to (a) freight, (b) general average contribution and (c) expenses incurred by the shipowners in protecting and preserving the goods. The third kind of lien may arise by virtue of an agreement an express agreement lien may be created for freight, demurrage and various charges but the agreement for lien under such express agreement will be limited to that for which it is expressly given. The third kind of lien may arise by virtue of an agreement an express agreement lien may be created for freight, demurrage and various charges but the agreement for lien under such express agreement will be limited to that for which it is expressly given. In common law there is no lien for dead freight or for Port dues or for demurrage for detention. Reference may be made to Scrutton on Charter-parties and Bills of Lading, 17th Addition, articles 157 to 165 at pages 372 to 377. It may be stated that counsel for the Commissioners conceded that claim of the Commissioners' dues in the present case was not in the nature of a maritime lien as there is no contractual lien by express agreement. The only lien which was said to arise in the present case is founded on the provisions contained in section 121 of the Calcutta Port Act. The contention of counsel on behalf of the Commissioners was that if possession was parted with the Commissioners could not take recourse to the provisions contained in section 121 of the Calcutta Port Act and the ship could not be put under distraint and if it could not be put under distraint it could not be detained and there could not be lien. Various ingredients are involved in invoking section 121. The provisions of the statute are to be followed. An application is to be made to the Collector of Customs. The Collector shall distrain or arrest the ship and detain the same until the dues of the commissioners are paid. Counsel for B. R. Gupta and Sons relied on the Notice of Motion dated 17 February 1966 taken out by the Commissioners of the Fort of Calcutta and the affidavit of Profulla Kumar Mitra affirmed on 15 February 1966. I have already referred to the various clauses of that Notice of Motion. The Commissioners asked for an order that the proceeds of the sale would be held subject to further order of the Court and the proceeds shall riot be disbursed except on notice to the Commissioners. Counsel for B. R. Gupta and Sons rightly contended that the Commissioners could not invoke the provisions contained in section 121 of the Calcutta Port Act by reason of three important features. Counsel for B. R. Gupta and Sons rightly contended that the Commissioners could not invoke the provisions contained in section 121 of the Calcutta Port Act by reason of three important features. First, the claim of the Commissioners for Rs.45,428.33 was the subject-matter of Suit No. 2164 of 1965 and a decree has been passed in that suit with the result that the claim has merged in the decree and the claim is enforceable and executable in accordance with law for enforcement of decrees. The Commissioners had the right to elect to either of the remedies conferred by section 121 or by section 122 (D) of the Calcutta Port Act. Section 121 gives the commissioners the power to have a ship put under distraint. Section 122 (D)confers power on the Commissioners to institute suit. By reason of the decree the claim for Rs. 46,428.33 could not be brought under the umbrage of section, 121. The second important feature is that with regard to the claim of the Commissioners for the sum of Rs. 31880/- for the period September 1, 1965 until 30 September 1966, the Commissioners in the affidavit of Profulla Kumar Mitra affirmed on 15 February 1966 stated that the nature of the commissioners' claim was for dock dues and services charges and further stated that the Commissioners would have no chance of recovering Commissioners' dues unless sale of the vessel was ordered and the same should in no event be delayed. The Commissioners totally abandoned remedies under section 121 of the Calcutta Port Act and asked for sale of the vessel under orders of this Court in this suit. In that affidavit it was also stated by the Commissioners that the Commissioners would suffer irreparable loss and injury unless the said-vessel was directed to be sold and removed from the berth where it was lying and unless the net proceeds of such sale are ordered to be held subject to further orders of this court. The third important feature will appear in the correspondence between the Commissioners and the Collector of Customs which are to be found in the annexures to the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967. The Commissioners by letter dated 9 September 1965 addressed to the Master of the vessel preferred claim for Rs. 46,428. The third important feature will appear in the correspondence between the Commissioners and the Collector of Customs which are to be found in the annexures to the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967. The Commissioners by letter dated 9 September 1965 addressed to the Master of the vessel preferred claim for Rs. 46,428. 33 and stated that unless the bills were paid within seven days they would be compelled to apply to the Collector of Customs to distrain or arrest the vessel and detain the same for sale. On 18 October 1965 the Deputy Chairman of the Commissioners wrote to the collector of Customs and the subject-matter was distraint of the vessel under section 121 of the Calcutta Port Act for nonpayment of dues covered by bills from the Commissioners of the Port Rs. 46,428.33 aggregating Rs. 1,31,058.35 calculated up to 31 August 1965. It was stated in that letter that the bills had not been paid. It was also stated that the master of the vessel had been written to on 9 September 1965 but no payment was made. In paragraphs 8, 9 and 11 of the letter of the Deputy Chairman dated 18 October 1965 addressed to the Collector of Customs it was said that an application would be made for distraint and arrest of the vessel s. s. RAY MAYABUNDER and the tackle, apparel and furniture belonging to the vessel and for detention thereof until the entire outstanding dues were realised. The letter was also asked to be treated as a notice under section 121 of the Calcutta Port Act. In the concluding paragraph of that letter it was stated that the commissioners came to know that an application under section 345 of the Indian Merchant Shipping Act by some sea-men had been made before the presidency Magistrate, 6th Court, Calcutta, and the vessel was ordered to be seized and the seized vessel was to be sold by public auction in the court building of the Presidency Magistrate at 2, bankshall Street, Calcutta, at 1-30 P. M. on 7 November 1965. The commissioners further stated that there was no legal bar to the attachment of the vessel for the claim of the Commissioners. The commissioners further stated that there was no legal bar to the attachment of the vessel for the claim of the Commissioners. By letter dated 1 November 1965 the Additional Collector of Customs wrote to the Deputy Chairman of the commissioners that notice under the provisions of Section 121 of the Calcutta Port Act had been issued on the owners. . Tike Additional Collector of Customs stated that it was doubtful whether S.S."ray MAYABUNDER" which had already been seized by the Presidency Magistrate, 6th Court, could be arrested by the Customs authorities. In the copy of the letter dated 1 November 1965 annexed to the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967 the word "arrested" was by mistake not typewritten. The original was produced and it appears from the original that the Collector of Customs could not arrest the ship. 17. IN the light of these three broad features Counsel for Messrs. B. R. Gupta and Sons rightly contended that the commissioners did not pursue the provisions contained in Section 121 of the Calcutta Port Act. It is manifest that the power of detention and sale contemplated in Section 121 is by applying to the collector of Customs. The application was made. Doubt was expressed. The matter was not pursued. The commissioners accepted the position that the Collector would not arrest the vessel. The Commissioner could have compelled the Collector to arrest the vessel if the Commissioners wanted to pursue the remedy under sec. 121 of the Calcutta Port Act. The Commissioners abandoned that right and applied for sale of the vessel through this Court. The Commissioners came to this Court. The Commissioners applied for sale of the vessel. The vessel has been sold. The Commissioners asked for removal of the vessel. Order was also made. Counsel for B. R. Gupta: and Sons is, in my view, sound and right in his contention that the Commissioners can not ask for any order for detention of the vessel until the dues are paid as they have asked for in the present application. The Commissioners abandoned their statutory power under S.121 of the Calcutta Port Act. The Commissioners came to this Court and asked for sale of the vessel. By asking for sale the commissioners expressly parted with the right to detain the vessel Sale implies that property in the ship peases. The Commissioners abandoned their statutory power under S.121 of the Calcutta Port Act. The Commissioners came to this Court and asked for sale of the vessel. By asking for sale the commissioners expressly parted with the right to detain the vessel Sale implies that property in the ship peases. By asking for an order for sale the property in the ship is conveyed. If a person who is entitled to an order of detention asks for an order of sale the power of detention is given up and so are the statutory remedies provided in Section 121 of the Calcutta Port Act. If there has been at the invitation of the commissioners sale of the vessel and the proceeds of sale are held subject to further orders it will be robbing the provisions contained in Section 121 of their content if now the Commissioners are allowed to ask for detention of the vessel after there has been sale and after property has passed by insisting on payment of the dues of the Commissioners for which they had specific remedy and which they did not avail of, 18. IN the case of (1) Emilie Millon reported in (1905) 2 KB 817, persons who wanted to take away the proceeds of sale were stopped by the necessary application on behalf of the Board and the Court acceded to the contention of the Board that if the lien that the Board had on the vessel was allowed to be parted with they would lose their remedy for ever. Again in the case of (2) Mersey Docks and Harbour, reported in 1923 AC 345, the claim of the Board was for the specific purpose of detention and redress of grievances in that behalf. In the present case the Commissioners took entirely a different course of action. They themselves came to court and asked for sale of the vessel. They asked for an order that the proceeds would be held in court. They asked for an order chat the vessel would be removed. It was contended by Counsel for the commissioners that by asking for removal of the vessel the Commissioners asked for removal from Berth No. 29 and not for any other order. The Commissioners asked for sale and removal and removal in the wake of sale means that after the property has passed in the vessel to the purchaser there would be removal. The Commissioners asked for sale and removal and removal in the wake of sale means that after the property has passed in the vessel to the purchaser there would be removal. The Commissioners had the right to detain and the Commissioners had the right to sell the vessel for the payment of their dues by following the provisions in section 121 of the Calcutta Port Act, The Commissioners did not avail of that remedy. The Commissioners did not even at the time of asking for sale assert and contend that the Commissioners had the prior lien for payment of dues and that the proceeds would be paid to the Commissioners in priority to any other claim because the proceeds represented the res or the vessel. Counsel for B. R. Gupta and Sons is, in my view, right in his contention that the cases relied on by Counsel for the Commissioners do not aid the Commissioners in establishing their right to detain the vessel at this stage after the proceed for sale had been initiated by the Commissioners and an order was made pursuant to the application for the Commissioners and proceeds are held in court subject to further orders of the court. There was some controversy as to whether there was any agreement as far as the Commissioners are concerned at the meeting held by the Marshal on 28 September 1866. Messrs Orr dignam and Company appears at that meeting. Counsel for the plaintiff Surendra (Overseas) Limited did not dispute that the plaintiff and the plaintiff's solicitors agreed that the vessel was being sold free of charges of the Commissioners. On behalf of the Commissioners it was contended that there was no such agreement by any representative of the Commissioners or the Solicitors of the Commissioners. That the meeting of the Marshal held on 28 September 1966 was attended by the Commissioners' representative and the Commissioners' solicitor was not disputed. What was disputed was that they did not agree. This is a disputed question of fact. I do not wish to express any opinion on the rival contentions at this stage. It will be left open to the parties to contend at the trial in support of their rival versions. The proceeds of sale are being held and at the time of passing of the decree the rival contentions will be agitated. I do not wish to express any opinion on the rival contentions at this stage. It will be left open to the parties to contend at the trial in support of their rival versions. The proceeds of sale are being held and at the time of passing of the decree the rival contentions will be agitated. For the purpose of the present application it is not necessary to rest the decision on this aspect of the agreement at the meeting of the Marshal. In my opinion the claim of the Commissioners to an order for directions being given on the Master to remove the vessel upon payment of Rs. 78,308. 33 and in default for an order that the Commissioners do exercise their statutory right under section 121 and also for an order that directions be given to the Collector of Customs to distrain are all, in my opinion, unfounded and cannot be sustained. 19. THE decree that the Commissioners had for a sum of Rs. 46,428. 33 in suit No. 2164 of 1965 is not capable of enforcement and execution by taking recourse to section 121 of the Calcutta Port Act. It is well-settled that what cannot be done directly cannot be done indirectly. The decree in suit No. 2164 of 1965 is executable under the provisions of the Code as a decree. That decree is incapable of execution by taking shelter behind section 121 of the Calcutta Port Act. The provisions of section 122d of the Calcutta Port Act have been resorted to by the Commissioners. A contention was advanced by counsel for the Commissioners that the word "notwithstanding" occurring in section 122d of the Calcutta Port Act would mean that there was no impediment to taking action to recover the amount by suit. Section 122d speaks of alternative remedy by suit. The provisions contained in Part IX of the Calcutta Port Act relate to levying, tolls and rates. Part IX occurs in Chapter IV of the Calcutta Port Act which deals with general powers of the Commissioners. Section 103 sequiter deal with levying tolls and rates. The provisions prior to section 121 deal with recovery of tolls in respect of goods. Section 121 deals with power of the Collector of Customs to distrain vessels for non-payment of tolls. Part IX occurs in Chapter IV of the Calcutta Port Act which deals with general powers of the Commissioners. Section 103 sequiter deal with levying tolls and rates. The provisions prior to section 121 deal with recovery of tolls in respect of goods. Section 121 deals with power of the Collector of Customs to distrain vessels for non-payment of tolls. Section 122d is the alternative remedy of suit in respect of tolls, dues, rents, charges, damages, expenses and costs and this power is alternative notwithstanding anything contained in section 111 and sections 116 to 122. Section 111 speaks of recovery of tolls in arrears. Sections 116 to 122 speak of lien for freight and power of the Commissioners to permit goods to be removed without regard to lien as also power of the Commissioners to sell goods by public auction and application of proceeds of sale. The statutory power conferred on the Commissioners under section 122d is the alternative remedy conferred on the Commissioners to have their grievances redressed by suit in a court of law. The other remedies contemplated in the statute are left to the Commissioners to be pursued either by their own procedural action or by taking action as contemplated in the statute. Section 121 confers power on the Commissioners to apply to the Collector of Customs. The remedy of distraint and sale through the Collector of Customs contemplated in section 121 cannot be pursued along with the suit filed in a court of law as contemplated in section 122d of the Calcutta Port Act. Nor can the Commissioners having submitted to the jurisdiction of a court of law after having abandoned the remedy provided in section 121 invoke the power of distraint and sale under section 121 through the medium of the suit in a court of law. That power cannot be invoked at this stage and in this application because of the facts, circumstances and reasons already stated. 20. COUNSEL for B. R. Gupta and Sons relied on the Bench decision in (3) Bibhuti Bhusasn Mozumdar v. Majibar Rahman and others, reported in 38 Calcutta Weekly Notes 971. That power cannot be invoked at this stage and in this application because of the facts, circumstances and reasons already stated. 20. COUNSEL for B. R. Gupta and Sons relied on the Bench decision in (3) Bibhuti Bhusasn Mozumdar v. Majibar Rahman and others, reported in 38 Calcutta Weekly Notes 971. A house property in Calcutta was sold in pursuance of a mortgage decree by the Registrar of the High Court on the Original Side, the sale proclamation mentioning, as usual, that the purchaser was not liable to pay outgoings previous to the date of the payment of the purchase money. The proclamation contained no mention of the outstanding rates and taxes. No notice of statutory charge in regard to the rates and taxes was given at or before the sale and at the sale the Corporation represented that their arrear should be paid out of the sale proceeds, It was held that the purchaser was not liable to pay the Corporation the arrears of rates and taxes inspite of section 205 of the Calcutta Municipal Act which created first charge upon the premises. It was held that the arrears were payable to the Corporation out of the purchase money in the hands of the Registrar and the mortgagee decree-holder was entitled only to get the balance thereof. In the trial court Ameer Ali, J., decided in favour of the purchaser that the sum due to the Corporation must be deducted from the sum lying in court and the balance would be paid to the plaintiff. On appeal Lort Williams, J., said that it was clear that the property was sold subject to a condition that the purchaser should not be liable to pay any outgoings prior to the date of the payment of the purchase money and the purchaser purchased it free from any encumbrance or charge. It is true that there is a distinguishing feature in the Bench decision that at the sale proclamation there was the notice that the purchaser was not liable to pay the outgoing. It is true that there is a distinguishing feature in the Bench decision that at the sale proclamation there was the notice that the purchaser was not liable to pay the outgoing. In the present case Counsel for Messrs B. R. Gupta and Sons rightly contended that the Commissioners not only refrained from giving any notice but they became disentitled to any lien or any charge by reason of the fact that the property had already been parted with as a result of the order of sale which was an order in invitum at the instance of the Commissioners. This was a sale of a vessel which would be sale of a movable and it would not be off the nature of a charge on immovable property. Furthermore, I have already said that it is not a maritime lien that the lien would attach to the res and would follow where it would go. Counsel for Messrs B. R. Gupta and Sons also contended that his clients by the letters annexed to the affidavit of Radheshyam Gupta affirmed on 3 February 1967 asked for an order for breaking up of the vessel and the Commissioners stated that they would have no objection to the breaking up of the vessel if necessary clearance from the Collector of Customs and the Principal Officer, Mercantile Marine? Department was obtained. The necessary sanction from the Marine Department came in the letter dated 13 December 1966 which would be found in the annexure to the affidavit of Radheshyam Gupta affirmed on 3 February 1967. This feature of the case shows that as far as the Commissioners were concerned they were proceeding on the basis that the purchaser was entitled to breaking up of the vessel until the letter dated 9 January 1966 was written. The reason why Counsel for B. R. Gupta and Sons emphasized on this correspondence was in support of the contention that though his clients had agreed to pay charges from the date of purchase his clients would not be liable to pay from 26 December 1966 until the disposal of this application because of the steps taken by the Commissioners. The reason why Counsel for B. R. Gupta and Sons emphasized on this correspondence was in support of the contention that though his clients had agreed to pay charges from the date of purchase his clients would not be liable to pay from 26 December 1966 until the disposal of this application because of the steps taken by the Commissioners. I do not wish to express any opinion on this aspect of the case save and except that the Commissioners have no right whatever to detain the vessel and insist on payment of these charges that unless these are paid the vessel would not be removed. I make it quite clear that the purchasers are at liberty to take all steps for removal of the vessel and if there be rival contentions between the Commissioners on the one hand and B. R. Gupta and Sons on the other hand with regard to these charges, the parties would take such steps as they are advised. 21. FOR all these reasons I am of opinion that this application should fail. The application is dismissed with costs. 22. COUNSEL for the Commissioners asks for stay of the operation of the order for one week. It is said that if the purchaser started dismantling the vessel the Commissioners will lose their right of statutory lien under section 121 of the Calcutta Port Act and further that the appeal will be anfractuous if the vessel is dismantled. Counsel for the purchaser on the other hand contends first that there is no positive order which is in operation in favour of the commissioners and a fortiori there is nothing the operation of which can be stayed. Secondly, it is said that the commissioners asked for an order for sale and did not ask for distribution of the proceeds of sale and on the contrary asked for an order that the proceeds do remain in Court and not be disbursed except upon the notice to the Commissioners. It is said on behalf of the purchaser that the reason why the Commissioners did not ask for an order for payment is that the question of priority between the plaintiff on the one hand and the Commissioners on the other will be decided in the suit. Thirdly, it is said that the Commissioners' claim for Rs. It is said on behalf of the purchaser that the reason why the Commissioners did not ask for an order for payment is that the question of priority between the plaintiff on the one hand and the Commissioners on the other will be decided in the suit. Thirdly, it is said that the Commissioners' claim for Rs. 46,000/- and odd has merged in the decree and the balance of Rs.31,000/- and odd is not the subject-matter of section 121 and in view of the fact that the Commissioners have not succeeded in this application they are indirectly having an injunction preventing the owner from dismantling the vessel. Fourthly, it is said by the Commissioners that the vessel may sink if it is not removed but the Commissioners as early as February 1966 alleged that the vessel was likely to sink. On the other hand, it is said on behalf of the Commissioners that if the vessel sinks the purchaser will have remedy against the Commissioners and the Commissioners also on instructions state that the vessel is not likely to sink in 7 days. 23. A stay of the operation of the order in the present case will mean granting an injunction restraining the purchaser from dismantling the vessel or taking steps in connection with that. This is indirectly continuing the injunction which has already been, vacated. On the other hand the purchaser has been kept out of the vessel. The purchaser has paid more than Rs. 3 lakhs. The purchaser is deprived of the benefit thereof. The claim of the Commissioners leaving aside the decree for Rs. 46,000/- and odd, amounts to Rs. 31,000/- and odd. I have already said that that also has resulted in the order for sale. I am of opinion that it will be unjust and unconscionable to allow any stay of the operation of the order. The Commissioners have taken recourse to their remedies. To allow the continuance of an injunction in an indirect form will be harsh and oppressive and I am unable to allow any stay as asked for.