ORDER :- The 2nd defendants are the owners of the 1st defendant vessel. The 1st defendant vessel is mortgaged to the plaintiffs. It is presently anchored in the port of Bombay. The suit is filed in the Admiralty and Vice-Admiralty Jurisdiction of this Court for realisation of the mortgage security. In the written statement the 1st and 2nd defendants contend that this Court in its Admiralty and Vice-Admiralty Jurisdiction does not have jurisdiction to entertain and try the suit. It is this preliminary issue that now comes up before me.

2. The history of this Court's power to entertain suits for realisation of the security in ship mortgage suits in its Admiralty and Vice-Admiralty Jurisdiction may briefly be traced. In the (English) Merchant Shipping Act, 1854, Sections 66 onwards dealt with ship mortgages, Section 71 conferred upon the mortgagee the power to sell the mortgage security without the intervention of the Court. Under the provisions of Section 11 of the (English) Admiralty Courts Act, 1861, the High Court of Admiralty was given jurisdiction over any claim in respect of any mortgage registered according to the provisions of the Merchant Shipping Act, 1854. Under the provisions of the Colonial Courts Act, 1890, the Legislature of British India was empowered to declare certain courts in India to be Colonial Courts of Admiralty and the Courts so declared had Admiralty jurisdiction. This Court being declared an Admiralty Court under the 1890 Act, it exercised under the provisions thereof such Admiralty jurisdiction as was exercised by the High Court of Admiralty in England under statute or otherwise. That jurisdiction this Court continues to exercise by virtue of the provisions of Cl.32 of the Letters Patent, 1865. In 1894 the Merchant Shipping Act was reenacted in England. Section 31 thereof gave to the ship-mortgagee power to sell the mortgage security without the intervention of the Court.

3. The (Indian) Merchant Shipping Act, 1958, was enacted, its preamble reads thus :-

"An Act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board and a Shipping Development Fund, to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping."

The provisions of Section 47 onward deal with ship mortgages. Under the provisions of Section 51 the mortgagee is entitled to recover the amount due under the mortgage in the High Court and it is expressly stated that he does not have the power of sale. The High Court is defined in Section 3(15) thus :-

4. " "High Court", in relation to a vessel, means the High Court within the limits of whose appellate jurisdiction -

(a) the port of registry of the vessel is situate; or

(b) the vessel is for the time being; or

(c) the cause of action wholly or in part arises."

5. It was submitted by the learned counsel appearing for the 1st and 2nd defendants that the power to entertain and try suits relating to ship mortgages is conferred under the aforesaid provisions of the 1958 Act upon all High Courts in India; that all High Courts in India were not Admiralty Courts; that the suit as filed within the Admiralty Division of this Court was, therefore, not competent and that it should have been filed under the ordinary Original Civil Jurisdiction of this Court. It was submitted that the 1958 Act was a code in itself in respect of all the matters it dealt with. It was contended, relying upon a judgment of the Supreme Court in Tansukh Rai Jain v. Nilratan Prasad Shaw (AIR 1966 SC 1780), that, since this was the intention of the legislature in enacting the 1958 Act, there was repugnancy between the aforementioned sections of that statute and the provisions of Section 11 of the 1861 Act read with Clause 32 of the Letters Patent. There was, it was said, a direct conflict between the aforementioned provis

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