P. Jaganmohan Reddy, C.J.
1. This Letters Patent Appeal filed on the grant of leave by our learned brother Kumarayya, J., involves the determination of the true scope and ambit of clause (5) of Rule 32 of Order 21 and Section 51(e), Civil Procedure Code.
2. The brief facts which give rise to the question posed before us are as follows: The tank in the shrotriem village of Annasamudram of which the respondents are the shrot riemdars, was in a state of disrepair and issue for several years past. The bund had breaches and the source of the tank, 'Gadi Vagu' would empty itself through two wide sluices. Because of these breaches water could not be trapped and it was not possible t have wet cultivation. The appellant who was the 1st plaintiff, and 4 others, plaintiffs 2 to 5, took on lease from the respondents the tank bed area and cultivated virginia tobacco, which does not require much water. In the lease deed it was stated that the 'lessees would be at liberty to let out water in tank bed area through sluices marked A and B in the plan attached to the plaint, which are no other than the two sluices through which the Gadi Vagu used to empty itself. Thereafter the plaintiffs expended moneys and prepared the land fit for cultivation . But the villagers started interfering with its cultivation by raising large earthen bunds at the sluices A and B and trapping water, which made it impossible for the plaintiffs to cultivate tobacco. The plaintiffs took proceedings under Section 144, Criminal Procedure Code and though they were successful to a certain extent, they could not get a permanent remedy, inasmuch as the two sluices had already been blocked by the earthen bunds. The plaintiffs thereafter filed a suit, O. S. No. 79/55, for the issue of a perpetual and a mandatory injunction in the Court of the Subordinate Judge, Kurnool, against the respondents herein in a representative capacity, under Order 1, Rule 8, C. P. C. as representing the entire body of villagers both of Patna Annasamudram and Kotha Annasamudram. The suit was eventually decreed on 16-1-1957. It may be stated that from paragraph 4 of the Judgment of the Subordinate Judge, it would appear that as a consequence of injunction orders passed in I. A. No. 675/55 Respondents 1 to 3 i.e., defendants 1 t o3 in the suit who are the elders of the two villages. had removed the bund which they had put up in the lands. But notwithstanding the fact that there was no bund at the time of the passing of the decree in O. S. No. 79/55 on 16-1-1957, there were mandatory directions given under that decree, the executability of which is now the subject matter of this appeal. The terms of the decree passed on 16-1-1957 are as below:
'1. That the defendants and other villagers of Patha and Kotha Annasamudrams be and hereby are restricted by means of a permanent injunction from interfering with the plaintiff's enjoyment of the schedule mentioned properties:
2. That the defendants and the villagers of Patha and Kotha Annasamudrams be and hereby are directed by means of a mandatory injunction to remove the earthen bunds put up by them in the north and southern sluices marked A and B in the plaint plan attached hereto;
3. That in default of the defendants and others (set out in clause (2) supra) removing the sluices directed as per clause (2) above, the plaintiffs shall be entitled to get the said sluices removed through Court at the expense of the defendants and the said villagers.'
After the passing of the decree no steps were taken to execute it, but later, as some disputes arose between the respondents and the plaintiffs in respect of the lease, the respondents filed a suit, O. S. No. 68/60 in the Court of the District Munsif, Markapur, for an injunction against the appellant herein and 4 others (plaintiffs in O. S. 79/55). By a separate application, they prayed for a temporary injunction restraining the appellant and others (plaintiffs in O. S. 79/55) from interfering with the rights of the respondents to fill up a 15 yards-long channel at the points R. S. in the plan filed by them along with the plaint. The appellant contended that the respondents in the guise of closing the channel at R. S. built up a fresh bund 4 feet in height and obstructed a sluice marked A in the plan attached to the decree in O. S. No. 79/55. Then the appellant and others (plaintiff-decree-holders in O. S. 79/55) sought to execute the decree in O. S. No. 79/55, alleging that the Respondents had violated the injunction order in that suit, by raising the bund. They contended that unless the rain water is drained through the sluice A, the tobacco crop raised in the land will be completely spoiled. Accordingly, they filed E. P. 56/60 seeking enforcement of their decree in O. S. No. 79/55 and for detention of the respondents in civil prison, and another petition. E. A. 94/60 to appoint a Commissioner to remove the bund at R. S. The Respondents raised several objections to the executability of the decree. on the grounds firstly, that they were not parties to the suit nor can they be deemed to be in any way represented by the Defendant s in O. S. No. 79/55. secondly, that the judgment in O. S. No. 79/55 was not passed on merits after contest, and so it cannot bind those who have not been expressly impleaded in the suit and thirdly, that the decree in O. S. No. 79/55 being a decree for injunction cannot be enforced personally against the respondents who are not eo nomine parties to the suit. Both the executing Court as well as the first appellate curt rejected the first two objections. But in respect of the third objection, they held, in view of a Full Bench decision of the Madras High Court in Kodia Gounder v. Velandi Goundar, : AIR1955Mad281 (FB) that the respondents not being eo nomine parties, the decree obtained by the appellant and other plaintiffs could not be personally enforced against them and they could not be committed to civil prison. The executing Court however granted the prayer of the appellant which was upheld in appeal namely that a commissioner be appointed for removing the bund R. S. under the terms of sub-clause (5) of Order 21, Rule 32, C. P. C. which provision, according to them, is wide enough to cover both a mandatory and a prohibitory injunction. Our learned brother Kumarayya J., reversed that finding, holding that sub-clause (5) of Rule 32 of Order 21, will not apply to cases of prohibitory injunction, and though sub-rules (1) and (2) of Rule 32 of Order 21 apply to both classes of injunction, the decree could not be personally enforced against the respondents and consequently the only remedy of the appellant is by way of a suit on a fresh cause of action for a mandatory injunction. Our learned brother further considered the applicability of Section 51(e) C. P. C. and came to the conclusion that the provision also does not assist the appellant, inasmuch as when a prohibitory injunction of a suitable character even under his inherent powers and so give effect thereto. In this view, he reversed the judgment of the Courts below and allowed the appeal.
3. Mr. Suryanarayana for the appellant contends that Order 21, Rule 32 (5) applies both to prohibitory as well as mandatory injunctions and could be enforced personally against persons who are not eo nomine parties in a representative suit. It is further urged that the appeal before Kumarayya, J., was not competent inasmuch as the decree being a joint decree and respondents 2 and 4 before him not having been served, the appeal was dismissed as against them on 18-9-1962, as such no appeal can be maintained against the rest of the respondents. which would result in a conflict of decrees. In support of this last contention, he has cited the decisions in State of Punjab v. Nathu Ram, : 2SCR636 : Ram Sarup v. Munshi, : 3SCR858 and Union of India v. Shree Ram, : 2SCR830 . Mr. Venkatarama Sastry, on the other hand, contends that before Kumarayya, J., objection was not taken and that the decisions of the Supreme Court relied upon are inapplicable to appeals against decrees in execution where the principles of abatement do not apply. If any of the judgment-debtors die or not served, he contends. the execution petition will be dismissed and there would be no bar to a fresh execution petition. In any case a reading of Order 22, Rules 11 and 12 would show that the provisions of that order do not apply to execution proceedings and are only confined to suits and appeals against decrees in those suits. Rule 3 of Order 22 which deals with the procedure where one of several plaintiffs or defendants dies and Rule 4 which deals with procedure in case of death of one of several defendants or of sole defendant. and Rule 8 which says that plaintiff's insolvency bars the suit, have been specifically excluded by Rule 12 from their application to proceedings in execution of a decree or application of Order 22 to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal, it also necessarily excludes the operation of the order to execution proceedings.
4. We do not think there is any force in the contention of the learned advocate for the appellant that having regard to the facts in this case where it is not a question of abatement due to death, Rule 12 of Order 22 has no application. The basis of the Supreme Court decisions for abatement of decrees is that there will be conflict of decrees, but that principle will not apply to execution proceedings because as held in Venkatachalam v. Ramaswamy, AIR 1932 Mad 73 by a Full Bench of the Madras High Court even prior to O. 22 R. 12 it was a fairly well established doctrine under the old Code that the provisions of the Chapter relating to substitution upon the death, marriage or insolvency of parties, do not apply to proceedings in execution between the decree-holder and the judgment-debtor. It will be observed that the principles underlying Order 22, Rule 12 are applicable not only in case of death of parties, but also in cases of insolvency, marriage etc., as such, the principle of abatement of decree does not apply to execution proceedings. Apart from the question that this point. was not urged before our learned brother and therefore cannot be allowed to be urged here, the decisions of the Supreme Court cited by the learned advocate are confined to cases envisaged by Order 22, Rules 3, 4 and 8 and are not authorities for the proposition that the principles adumbrated by their Lordships are applicable to execution proceedings.
5. The only two questions that have been argued before us are that Kumarayya, J., was wrong in holding that clause 2 of the decree giving a mandatory direction could not be executed, inasmuch as the bund had already been removed even before the passing of the decree. Mr. Suryanarayana contends on the authority of Venkatachallam Chetty v. Veerappa Pillai, (1906) ILR 29 Mad 314 that the Court cannot go behind the decree. Secondly, he contends that even assuming that the construction placed by Kumarayya, J., is correct, the question arises as to whether resort can be had to Order 22, Rule 32 (5) in cases of violation of the terms of the prohibitory injunction. It is contended that the above provision is capable of a construction which would cover both prohibitory as well as mandatory injunctions.
6. On the first question, we may say that it is an admitted fact that it was the specific contention of the appellant that the respondents under the guise of closing the channel at R. S. had built up a bund more then 4 feet in height and obstructed the sluice marked A in the plan attached to the decree in O. S. No. 79/55. It is also their case that the sluice marked R. S. in the plan attached to the plaint in O. S. No. 68/60 is the very same sluice marked. A in the plan attached to the decree in O. S. No. 79/55. This makes it clear that the bund which was in existence at the time when O. S. No. 79/55 was filed was not in existence either at the time of the filing of O. S. No. 68/60 or when E. P. No. 56/60 was filed in execution of the decree in O. S. No. 79/55 alleging that the respondents had violated the injunction order passed in O. S. No. 79/55 by constructing the bund shown at R. S. in the plan attached to the plaint in O. S. No. 68/60. The whole basis of the proceedings between the parties after the decree in O. S. No. 79/55 was that there was no bund and that the same had been constructed by the respondents under the guise of closing the channel. The bund, for the removal of which O. S. No. 79/55 was filed, was not in existence at the time of the passing of the decree in that suit. and the mandatory direction contained in clause 2 of the decree was otiose and could not be given effect to, in that no bund at A B existed on the date of the decree which could be removed. Even if the bund had existed on the date of the decree, as pointed out by us during the course of the arguments, on the passing of the decree if the defendants had voluntarily removed the bund and some other persons who are not parties eo nomine to the suit had reconstructed it, could the decree if the defendants had voluntarily removed the bund some other persons who are not parties eo nomine to the suit had reconstructed it, could the decree be executed for removal of this fresh bund? Mr. Suryanarayana frankly conceded that if the bund at A B had existed at the time of the decree and if that was removed in execution of that decree, a subsequent construction of the bund would not entitle the decree-holder to have that removed in execution of that decree, as the decree had been satisfied by execution thereof. If this is so, then the voluntary removal of the bund without execution also would disentitle the decree-holder to execute the decree for removal of a fresh bund which is not the same bund for which the mandatory injunction was issued. ON this analogy, if the bund was not in existence at all at the time of the mandatory injunction which by mistake was incorporated in the decree, it would not entitle the decree-holder to execute it against a bund which was not in existence then but which came into existence subsequently to the decree. We do not think that there is anything in the Bench decision in (1906) ILR 29 Mad 314 (Supra) which would assist him. That was a case where a perpetual injunction had been granted, which entitled the decree-holder on each successive breach of it to enforce the decree under Section 260 of the Civil Procedure Code 1882 by an application made within 3 years of such breach under Article 178 Schedule II of the Limitation Act, 1877. It may be stated that the decree in that suit was passed on 20th December, 1890 in terms of the prayers in the plaint, which were for a declaration of the plaintiffs' right, and an injunction against the defendant. The injunction order which was publicly notified to the defendants was in the following terms:-
'Whereas it has been decreed that the disputed jungle belongs to plaintiffs village and to the plaintiffs. that the defendants have no sort of right in it and that the defendants should not enter or offer obstruction to plaintiff's enjoyment, the defendants are hereby ordered not to hereafter in any manner enter the aforesaid jungle.'
The executing Court held that where a decree awards a perpetual injunction, application for execution of the decree under Article 178 must be made within three years from the time when the defendant first acts contrary to such decree, and that in any case, the acts complained of by the decree-holder could not be considered as constituting disobedience of the injunction issued in the suit, It accordingly dismissed the petition, and this order was confirmed in appeal. The Bench consisting of Renson and Moore, JJ., set aside that order, on the grounds already stated. In allowing the appeal, it was observed at page 317: 'In the present case the decree-holder in his application referred to the channel being newly cut, and the Commissioner regarded the new cuttings as having been made about one and a half years prior to the application. The District Judge did not refer to the date of these, but finding that there had been some infringement so far back as 1897 held that the execution of the decree was barred by Article 178. This view, as we have said, cannot be sustained. We must also point out that the Subordinate Judge was wrong in going behind the terms of the decree. Its terms are perfectly clear, and that being so, it was the duty of the Subordinate Judge as an executing Court, to give effect to the terms of the decree without attempting to read into it limitations gathered from a reference to the records of the suit in which the decree was passed.'
We have given the actual injunction order passed in that case, from which it will be seen that it was a perpetual prohibitory injunction giving a right to execute it on every successive breach, and there was no justification for going behind the decree when the terms of that decree were clear. If a prohibitory injunction is disobeyed, the decree-holder will have a right to execute it every time there is a breach. There is no scope for raising such a contention before us in execution of the decree in the present case. We do not think there is any substance in the contention of the learned advocate for the appellant that our learned brother erred in going behind the decree, where the decree on the face of it and on the allegations in the execution proceedings, could not have been executed for removal of a bund, the demolition of which was ordered and which was in fact not in existence at the time of the passing of the decree.
7. The next question for considering is whether the word 'injunction' in Or. 21 R. 32 (5) must be interpreted as covering both a mandatory as well as a prohibitory injunction. The learned advocate for the appellant frankly conceded that the views of the Allahabad, Calcutta, Patna, Nagpur, Punjab and the Andhra Pradesh High Courts are against the proposition for which he is contending namely, that it applies to prohibitory injunctions also. These cases are Angad v. Madhao Ram, AIR 1938 All 416; Chiranji Lal v. Behari : AIR1958All326 ; Hem Chandra v. Narendra Nath, AIR 1934 Cal 402; Ajabrao Domajee v. Atmaram Sadasheorao, AIR 1954 Nag 245; Murari Lal v. Nawal Kishore, ; Toon Lal v. Sonoo Lall, AIR 1938 Pat 522 and Ramabrahma Sastry v. Lakshminarasimham, 1956 Andh LT 492 = (AIR 1957 Andh Pra 44) In all these decisions it has been held that Order 21, Rule 32 (5) applies only to mandatory injunctions. To these cases must be added a decision of he Madras High Court in Chinnabba v. Chengalroya, : AIR1950Mad237 which also took a similar view.
8. Sri Suryanarayana relies on two decisions, Kelu Manikaram v. Parayanan, (1911) 21 Mad LJ 465 and Sampath Chetty v. Sankara Iyer, 1930 Mad WN 809. But before we deal with these cases, it is necessary to examine the relevant provisions of Order 21, Rule 32, C. P. C.:-
Order 21, Rule 32 (1) 'Where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it. the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
(2) xx xx xx
(3) xx xx xx
(4) xx xx xx
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
Illustration:- A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings.'
9. A perusal of he above provisions would show that sub-rule (1) would apply both to mandatory as well as prohibitory injunctions. It is not denied that the respondents not being 'eo nomine' parties to O. S. No. 79/55 no injunction could be enforced against them and they cannot, therefore, be committed to civil both the Courts and there has been refused by both the Courts and there has been no appeal against it. Sub-rule (5) is the only pertinent provision: but that again, on the language used, applied to mandatory injunctions. The word 'injunction' in sub-rule (5) has been qualified by the words 'has not been obeyed' and the rule days that in the even of disobedience of the injunction the Court may direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court. This could only be a mandatory direction. A prohibitory direction would be not to do an act. A mandatory direction is la command to do a positive act a prohibitory injunction is a negative one restraining him from doing a particular act. The difference between the two is obvious and Rule 32 (5) can only be construed as applying to mandatory injunctions and not to prohibitory injunctions.
10. In Sachi Prasad v. Amar Nath, AIR 1919 Cal 674 no doubt Richardson, J., expressed a view that clause (5) of Order 21, Rule 32 applies to prohibitory as well as mandatory injunctions. But this view was dissented from by a Bench of the same High Court in AIR 1934 Cal 402, Mukerji, J., speaking for the Bench observed at page 403:
'With all deference to the learned Judge I am of opinion that notwithstanding that the word 'injunction' is used in clause 5 without any qualification of restriction, that clause cannot be read as embracing prohibitory injunctions. The clause as well as the illustration appended to it make it, to my mind, perfectly clear that it is the act required to be done by the mandatory injunction that is 'the act required to be done' within the meaning of the clause. Illustrations no doubt are no part of the section, but they have been expressed by the Legislature as helpful in the working and application of the statute and their usefulness in that respect should not be impaired.'
In that decision, the Bench followed Gordhan Lalji v. Maksudan Ballabh, ILR 40 All 648 = (AIR 1918 All 152)
11. We have gone through the several decisions referred to by us and find that each one of those cases support the view taken by us. Panchapakesa Ayyar, J. in : AIR1950Mad237 and Viswanatha Sastry J., in 1956 Andh LT 492= (AIR 1957 Andh Pra 44) also took a similar view that clause (5) of Rule 32 has no application to a prohibitory injunction but applies only to mandatory injunctions. IN AIR 1950 Mad 237 the several cases referred to were examined and relied upon. Viswanatha Sastry, J., in Ramabrahma Sastry's case 1956 Andh LT 492 = (AIR 1957 Andh Pra 44) relied on the case of Chinnabba's case, : AIR1950Mad237 and AIR 1938 All 416.
12. (1911) 21 Mad LJ 465 referred to by the learned advocate for the appellant is a case under Section 260 of the Civil Procedure Code of 1882. It may be noted that there was no provision similar to clause (5) of Rule 32 in the C. P. C. of 1882. It was held in that case that Section 260 applied to cases where the judgment-debtor is restrained from doing an act (from taking water which the decree-holders were carrying through a 'thoud') The passage in that case relied by the learned advocate for the appellant is as follows:
'It is contended that if Section 260 applied this appeal fails but it is contended that the section does not apply, as the 2nd clause shows that it contemplates only cases where the judgment-debtor may carry out the terms of the decree within the period of one year the property is to remain under attachment before it is sold and does not therefore apply to this and similar cases where the judgment-debtor is restrained from doing an act, and he has already violated the terms of the decree.'
It may however be noted that the above observations were made on a concession and cannot really be effective as an interpretation of Section 260 of the C. P. C. of 1882. Section 260 has provisions analogous to Order 21, Rule 32 sub-rules (1), (3) and (4) and is as follows:-
'Where the party against whom a decree for the specific performance of a contract or for restitution of conjugal rights or for the performance or abstention from any other particular act, has been made, has had an opportunity of obeying the decree or injunction and has willfully failed to obey it, the decree may be enforced by his imprisonment or by the attachment of his property, or by both.'
In Bhoobun Mohun Mundul v. Nobin Chunder, (1872) 18 Suth WR 282: Doorga Lall v. Lalla Hulwant Sahoy,(1977) 25 Suth WR 306: F. H. Holloway v. Mahomed Ali, (1871) 16 Suth WR 140 and Protap Chander Das v. Peary Chowdharain, (1882) ILR 8 Cal 174 it has been consistently held that the execution is enforceable only in the manner prescribed by Section 260. In the first of these cases, an order from the Court directing the Ameen to execute a decree, which directed that 'the defendants do, within six weeks after service on them of this decree, remove the obstruction and reopen the pathway etc., was held to be contrary to law.
13. In the other case relied upon by the appellant viz., 1930 Mad WN 809 the decree which was sought to be executed was a consent decree in which the plaintiffs right to easement to light and air was declared and certain directions with regard to the erection of a building by the defendant so as not to contravene that right, were given. The term of the decree were that such and such a thing shall be done or shall not be done. This decree, it was stated, could be enforced under Order 21, Rule 32 as being a decree for injunction. At page 810 Curgenven, J., said:
'It seems scarcely necessary to refer to any case law upon the matter and we need only observe that the circumstances dealt with ........We think that a decree of this nature can clearly be enforced under the terms of Order 21, Rule 32, C. P. C. as being a decree for an injunction. and accordingly that either under sub-rule (1) the defaulting party may be detained in civil prison or his property attached, or under sub-rule (5) the act required to be done may be done either by the decree-holder or by some other person appointed by the Court and the expense recovered from the judgment-debtor.'
We fail to understand how this cases can help the appellant, because there are both mandatory and prohibitory directions in the decree. In our considered view, therefore, there is little doubt that Order 21, Rule 32 (5) applies only to mandatory injunctions and not to prohibitory injunctions.
14. The next question is whether the Court has power under Section 51(e) read with Section 151, C. P. C. to direct the respondents to remove the bund, Section 51(e) says that subject to such conditions and limitations as may be prescribed, the Court may on the application of the decree-holder order execution of the decree in such other manner as the nature of the relief granted may require. Under this section 151, C. P. C. a decree cannot be executed in circumstances which give a fresh cause of action to the decree -holder. As observed by our learned brother Kumarayya, J.,
'When a prohibitory injunction is disobeyed. certainly it is not within the competence of the executing Court to substitute therefor a mandatory injunction of a suitable character, even under the inherent powers and give effect thereto.'
: AIR1955Mad281 (FB) is a case where the question was whether the decree for injunction could be enforced against the respondents who are not eo nomine parties to the suit or to the decree Krishnaswamy Nayudu, J., speaking for the Full Bench observed at page 283:
'A 'party' to such a suit is therefore one who is impleaded as a party or one who on an application under Order 1, Rule 8 sub-rule (2), C. P. C. is brought on record, that is, one who is eo nomine made a party. The others who are not brought on record can be only deemed to be parties and will not be parties as such. Section 47, C. P. C. cannot therefore be a bar to a fresh suit against the present respondents since the question for determination is not one that arises as between the parties to the suit. Since the respondents could not be held to be parties there can be no doubt that any question arising between a party to the suit and persons who are not parties is not a matter which can be determined only in execution and could therefore be decided by a separate suit. On a consideration therefore of the relevant provisions of the Code it appears to be clear that there can be no execution of a decree against persons who are not impleaded as defendants even though they were sought to be represented by the defendants on record by reason of the procedure in Order 1, Rule 8 having been followed.'
Again at page 285 after examining the several decisions he observed:
'If no execution of such a decree could be maintained against those persons who are not impleaded as defendants on the ground that they are not bound to obey the decree personally it is obvious that they cannot be held liable for any willful disobedience of such a decree. The result is that not only could there be no execution but there could be no application under Order 39, Rule 2 or under any other provision of law, for proceeding against those persons for such disobedience. We are of opinion that the decrees for injunction in these cases are neither executable nor enforceable against the contesting respondents.'
Section 51(e) can therefore be of little assistance to the appellant and it cannot enable the Court to give a fresh mandatory direction to remove something which was not in existence at the time of the decree.
15. In the view we have taken, we confirm the decision of Kumarayya, J., and dismiss the appeal with costs.
16. Appeal dismissed.