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Duraisami Nadar Vs. Sudalaimada Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 318 of 1957
Judge
Reported inAIR1962Mad181; (1962)1MLJ40
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 103; Limitation Act - Schedule - Article 11-A
AppellantDuraisami Nadar
RespondentSudalaimada Nadar and ors.
Cases ReferredG. Suryanarayana v. G. Ganesulu
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 100--indian limitation act (ix of 1908), article 11----applicability--article 11-a applies only to suits under order xxi, rule 103, civil procedure code-- procedure under order xxi only optional--party may resort to remedy under general law ; the appellant obtained a decree for possession of certain property against a number of person sin original suit no. 232 of 1948, district munsif's courts, srivaikuntam. in execution of that decree, he took possession of the property on 3rd march 1953. the respondents, who were not parties to the suit, applied under order xxi, rule 100, civil procedure code (act v of 1908) claiming that the appellant, while executing the decree in his favour, had wrongfully dispossessed them of the property which..... (1) this appeal originally came on before subrahmanyam j., who considered that it should be heard by a division bench, mainly because, in his opinion, the decision of a division bench invenkatasubba reddi v. c. linga reddi, 41 ind cas 640 : (air 1918 mad 554 (1)) required reconsideration. the learned judge formulated the following questions as falling for decision in the appeal :1. whether, in the matter of limitation, suits, for which provision is not made by order xxi rule 103 c.p.c., are not governed by art. 11-a of the limitation act notwithstanding that such suits are within the terms of art. 11-a and2. whether an order dismissing an application made under or. xxi rule 100 may be deemed to be an order passed under rule 101, where such an order is made (i) by the court on the merits.....
Judgment:
(1) This appeal originally came on before Subrahmanyam J., who considered that it should be heard by a Division Bench, mainly because, in his opinion, the decision of a Division bench inVenkatasubba Reddi v. C. Linga Reddi, 41 Ind Cas 640 : (AIR 1918 Mad 554 (1)) required reconsideration. The learned Judge formulated the following questions as falling for decision in the appeal :

1. Whether, in the matter of limitation, suits, for which provision is not made by Order XXI rule 103 C.P.C., are not governed by Art. 11-A of the Limitation Act notwithstanding that such suits are within the terms of Art. 11-A and

2. Whether an order dismissing an application made under Or. XXI rule 100 may be deemed to be an order passed under rule 101, where such an order is made (i) by the court on the merits after investigation of the claim made by the applicant, (ii) by the court on such application being not pressed by the applicant after a date had been fixed under rule 100 (2) for investigation of the matter and (iii) on the ground of limitation, non-maintainability, and the like."

It is sufficient to state the following facts for the purpose of this appeal. IN O. S. No. 232 of 1958 on the file of the District Munisif, Srivalkuntam, the appellant before us obtained a decree for possession of the suit property. In execution of that decree, he took possession of the property on 3-3-1953. The respondents before us were not a parties to the suit. They filed an application purported to be under Order XXI rule 100 C.P.C., alleging that they were rightfully in possession and that they had been dispossessed, and praying that they be restored to possession. Notice of the application went to the appellant-decreeholder and the application was posted for hearing and was being adjourned from time to time. Eventually, on 15-2-1954, the plaintiffs made an endorsement on the application that they did not propose to prosecute the application as they intended to file a separate suit. The application was dismissed on the same day-presumably on that endorsement-as not pressed. On 27-8-1955, the suit (O. S. No. 170 of 1955) out of which this appeal arises was instituted in the District Munsif's court, Srivaikuntam, by the respondents for a declaration of their title to the suit property and for a permanent injunction restraining the defendants from interfering with their enjoyment, or, in the alternative, for recovery of possession no such portion of the property as might be found to be in the enjoyment of the defendants. One of the pleas raised by the defendants was that the suit was barred by limitation under Art. 11-A of Sch. 1 of the Limitation Act, as it was not filed within one year from the date of the order dismissing their application, namely, 15-2-1954. The learned District Munsif decreed the usit. On appeal the learned Subordinate Judge of Tuticorin set aside thedecre eand remanded the suit for fresh disposal. The above civil miscellaneous appeal, is against the order of remand, the first defendant being the appellant.

(2) The only question which was raised at the original hearing of the appeal was whether the suit was barred under Art. 11-A of the Limitation Act. The learned Subordinate Judge held that that Article did not apply, and therefore, the suit was in time. The contention on behalf of the appellant was that Art. 11-A applied to the suit, and that, as the suit was not brought with in one year from the date of the order dismissing the plaintiff-respondents' application under Or. XXI rule 100 C.P.C., the suit was barred.

(3) Art. 11-A runs thus :

Description of suit Period of limitation. Time from which period begins to run.

By a person against whom an order has been made under the Civil Procedure Code, 1908, upon an application by the holder of a decree for the possession of immoveable property or by the purchaser of such property sold in execution of a decree complaining of resistance or obstruction to the delivery of possession thereof, or upon an application by any person dispossessed of such property in the delivery of possession thereof to the decree-holder or purchaser, to establish the right which he claims to the present possession of the property comprised in the order. one year. the date of the order.

To under stand the scope of the first column of the above Article, it is necessary to refer to the following rules of Order XXI C.P.C. :

97 (1). Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the court complaining of such resistance or obstruction.

(2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other persons at his instigation, it shall direct that the applicant be put in to possession of the property, and where the applicant is still resisted or obstructed in obtaining possessing the court may also, at the instance of the applicant, order the judgment debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.

99. Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than those mentioned in rule 98) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment debtor, the court shall make an order dismissing the application.

100(1) Where any person other than the judgment debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property, or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.

(2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall director that the applicant be put into possession of the property.

102. Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immoveable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any) the order shall be conclusive."

(4) Art. 11-A was originally included in Art. 11 in the Limitation Act of 1877. It is only in the present Act of 1908 that Art. 11 was split up into two Articles-Art. 11 and Art. 11-A. Broadly speaking, Art. 11 relates to what are familiarly known as claim order, while Art 11-A relates to orders arising out of delivery of property. IN neither Article is there any express reference to particular rules of the Code. As both Art. 11 and Art. 11-A prescribe the same time limit and are intended to apply to what are often described as summary order in the course of execution proceedings, it is useful to set out hereunder Art. 11 as well :-

Description of suit

Period of limitation

Time from which period begins to run

ART. 11-By a person, against whom any of the following orders has been made to e stablish the right which he claims to the property comprised in the order : (1) Order under the Civil Procedure Code, 1908 on a claim preferred to, or an objection made to the attachment of, property attached in execution of a decree; (2) Order under S. 28 of the Presidency Small Cause Courts Act, 1888. One year.

The date of the order.

The corresponding provisions of the Civil Procedure Code are order XXI rules 58 to 63. It is sufficient, however, to set out below rules 58 (1), 60, 61 and 63.

"58(1). Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigation the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit;

Provided that no such investigation shall be made where the court considered that the claim or objection was designedly or unnecessarily delayed................

60. Where upon the said investigation the court is satisfied that for the reason sated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time it was so in his possession, not on his own account or as his own property, but on his own account or as his own property, but on account of or in trust for some other person or partly on his own account and partly an account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.

61. Where the court is satisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the court shall disallow the claim.

63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claim s to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive."

(5) Having regard to the course which we propose to adopt, we shall not discuss in any detail the several decision which were cited to us at the Bar and other decisions to which we ourselves had occasion to refer.

(6) The first main question which arises is whether Art. 11-A is applicable only to suits which would directly fall under Or. XXI rule 103 C.P.C. Apparently, the first question set out by Subrahamanyam J., implies that, in his opinion, there may be suits for which provision is not made by O. XXI R. 103 C.P.C., but which may be governed by Art. 11-A of the Limitation Act. WE are inclined to take a different view. As the question will be discussed before the Full Bench, it is sufficient to indicate our opinion that the legislative history is practically conclusive on the point and shows that Art. 11-A is intended to apply on ly to suits which fall within the scope of Order XXI rule 103 C.P.C., jst as Art. 11 applies only to suits which fall within Or XXI rule 63 of the Code. Before Art. 11-A can be applied, there should be an order made under the Civil procedure Code. It is the date of the order from which time begins to run. The words "to establish the right which he claims to the present possession of the property", which occur in rule 103 of Order Xxi C.P.C., are identical with words 'to establish the rights which he claims to the present possession of the property' in Art. 11-A of the Limitation Act. It is important to notice that the effect of Order XXI rule 63, as well as of rule 103 of the Code is to make any order which falls within the scope of either rule, conclusive subject to the result of a suit which may be instituted to get rid of it. It follows that, to such a suit, Art. 11 and 11-A apply.

(7) On one point, we are in complete agreement with Subramanyam, J., Indeed, we think there can be no reasonable doubt about it. It is this. Though in terms, Order XXI rule 101 of the Code mentions only the case where the court directs that the applicant be put into possession of the property on the application made by him under rule 100, even an order dismissing such an application would fall within rule 101, notwithstanding that such an order is not expressly mentioned. An application filed by a party should be disposed of in one way or the other. The application may be granted, or the application may be rejected.It cannot be left in the air. If the application is not granted and the court does not direct that the application be put into possession of the property it can only mean that the court has rejected the application. Such an order of rejection will fall with in the category of orders referred to in rule 103, namely, an order against the party.

(8) The next and more difficult question is: when can an order be deemed to be an order which would become conclusive under Or. XXI rule 103 C.P.C., if not set aside within the period prescribed by Art. 11-A of the Limitation Act? It has been held in some decision s that it is only an order made after investigation that would fall within the category. This test, however, is not always easy of application; as it would always be a matter for controversy when an order can be deemed to have been passed after investigation. There is one contingency which does not arise in this appeal, namely, when an application under Or. XXI rule 100 is thrown out on the ground that it is barred by limitation or that it is not maintainable for some reason or other, and consequently there is no disposal on the merit. In the present case, the application was eventually dismissed as not pressed, though on an endorsement that the applicant intended to file a separate suit.

(9) Several decisions were cited to us, and we have looked into other decisions also, which have a bearing on the question. WE are unable to find such a consensus of opinion as to hold that the rule to be applied has been well established. The decision which is strongly relied on for the respondents and on the strength of which the learned Subordinate judge rendered his decision is in 41 Ind Cas 640 : (AIR 1918 Mad 554 (1)) Subramanyam J has, after perusing the records, pointed out that, in that case, the application made under O. XXI R. 100, C.P.C., was dismissed without investigation on the ground that it was not presented within 30 days from the date of the alleged dispossession. AS we have already mentioned, the present is not such a case. But there are the decision in G. C. Brahmayya v. C. Venkamma, 1933 Mad WN 924, Dwarika Sahu v. Mt. Anandi, , Trimbak Tumdu v. Ziparu

Chaturda, ILR 57 Bom 213: (AIR 1933 Bom 190), Saratchandra v. Tariprasad Pal, ILR 34 Cal 491 in which the courts have held that the dismissal of an application either for default or as not pressed is not an order passed after investigation, and that therefore Art. 11-A would not apply to a suit to get rid of the effect of such an order. ON the other hand, it has been held in Shagun Chand v. Mt. Shibbi, 8 All LJ 626 and Venkatachalpati Row v. Veeraswami, 1915 Mad WN 188 : (AIR 1915 Mad 1144) that, when an application is dismissed for failure to adduce evidence, a suit to set aside an order passed in the circumstances would be governed by Art. 11-A. In the Full Bench decision inCannanore Bank Ltd., v. P. A. Madhavi, ILR (1942) Mad 336: (AIR 1942 Mad 41) an order was passed on a claim petition in these words : "Petition not pressed. It is dismissed". It was held that it would be an adverse order within the meaning of order XXI rule 63 C.P.C., and that, if the petitioner wished to reopen the matter, he had to file a suit within one year from the date of the order. The following observations of Leach C. J., are instructive :

"If the petitioner had in fact asked to be allowed to withdraw the petition and the court had acquiesced in the course it might very well be that the order would not be an adverse order within the meaning of the rule, but we do not agree that because a claimant says to the court that he does not press the petition and consents to an order of dismissal, it is not adverse order. IN such circumstances, it would in our opinion, clearly be an order against him within the meaning of rule 63, provided, of course, that the application was one which fell within rule 58.... Where the petitioner informs the court that he wishes to withdraw his petition, the court may allow him to do so and by the use of appropriate language in the dismissal order make it quite clear that it is not intended to be an adverse order. We can see no reason why the claim petition should not be withdrawn if the claimant wishes to withdraw it but the order passed in such circumstances should be worded so as not to attract the operation of Art. 11 of the Limitation Act."

Again, the learned Chief justice refers to the case in Lingama Naidu v. Official Receiver, madurai, 110 Ind Cas 511 (Mad), where a claim petition was filed but the applicant subsequently applied to be allowed to withdraw it, stating that he would file a regular suit. The court passed an order dismissing the petition. It was held that the order did not fall within rule 63 on the ground that it could be so held only when the disposal had been either on investigation or refusal to investigate on the ground that the claim was filed too late. This decision was expressly disapproved by the learned chief Justice who delivered the judgment of the Full Bench. The rule is thus summed up at page 345 (of ILR Mad): (at p. 44 of AIR) :

"If the petition is a petition which falls within rule 58 and the petitioner has not sought permission to withdraw it without prejudice to is rights it is obviously an order which is against him."

This principle was applied in G. Suryanarayana v. G. Ganesulu, by Ramaswami J., to an order made on an application for redelivery, that is, an application under Order XXI rule 100. That petition was dismissed as not pressed. The learned Judge deals with the point in the following manner:

"It is well settled that where there is an adverse order in execution and that is not got set aside by means of a suit, the order becomes final and it will not be open to the defeated claimant to reagitate the matter in subsequent suits..... But the test is to see, whether the order is under rule 63 or 103 of Order 21 C.P.C., whether the order is against the claimant and it does not mean that the order must involve an adjudication on merits after investigation. The principle underlying the speedy settlement of claims is that fi a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well as its benefits and constructive res judicata. If the petitioners had in fact asked to be allowed to withdraw the petition and the court had acquiesced in the course, it might very well be that the order would not be an adverse order within the meaning of the rule; but it cannot be said that, because a claimant says to the court that he does not press the petition and consents to an order of dismissal, it is not an adverse order. Having regard to the conflict of views, we think it desirable that there should be reference of the question to a Full Bench, as the question is likely to arise frequently.

OF THE FULL BENCH

Ramachandra Iyer, Officiating C.J.

(10) In the view which we are persuaded to take of the facts of the case, which give rise to this reference, it has become unnecessary to answer the questions referred to us. The appellant obtained a decree for possession of certain property against a number of persons in O. S. No. 232 of 1948 on the file of the District Munsif's court, Srivaikuntam. In execution of that decree he took possession of the property on 3-3-1953. The respondents, who were not parties to the suit, applied under Order XXI rule 100 C.P.C., claiming that the appellant, while executing the decree in his favour, had wrongfully dispossessed them of the property which was in their possession and to which they were entitled in their own right, and prayed for restoration of their possession. The appellant contested that application. It was posted for Enquiry from time to time. On 15-2-1954, to which date the enqu9iry stood posted,the respondents made an endorsement on their application to the effect that they were not prosecuting the same. The endorsement is in tamil and freely translated, reads;

"As we have got to prove possession of the properties we are not prosecuting this application further (Mel Nadathavillai) We shall file a separate suit."

On the strength of this endorsement the court stated: "E. A. Dismissed as not pressed."

(11) The respondents instituted a suit, out of which the present civil miscellaneous appeal arises, on 27-8-1955, for a declaration of their title to the property, and for an injunction restraining the appellant from interfering with their enjoyment, or in the alternative for recovery of possession of such portion of the property that might be found to be in the enjoyment of the appellant. The respondents' case was put on an alternative basis: 1, That they had the entitle to and had a right to be in possession of the suit property. 2. Alternatively, the property which formed the subject matter of the present suit, is not the same as the one decreed to the appellant in O. S. No. 232 of 1948. One of the a defences raised in the suit, which alone has occasioned this reference, is whether the suit is barred by limitation under Art. 11-A of the Limitation Act.

(12) The learned Judges have indicated the order of reference their view that Art. 11-A will apply only to suits instituted under Order XXI rule 103 C.P.C. We are in respectful agreement with that view. It is well known that the Civil Procedure Code and the Limitation Act. Which were both enacted at about the a same time are in pari materia, forming as it were a system of legislation in regard to the civil procedural law in this country. It is therefore permissible to call in aid the relevant sections or rules of the Civil Procedure Code in the construction of the various articles of the Limitation Act. As pointed out in the order of reference, the words "to establish the right which he claims to the present possession of the property which occur in rule 103 of Order XXI", are identical with the words "To establish the right which he claims to the present possession of the property" in Art. 11-A of the limitation Act. In order, therefore, that Art. 11-A should apply, it should be shown that the present suit was one under Order XXI rule 103 C.P.C. It is apparent from a reading of rule 97 to 103 of Order XXI that a suit praying for relief (like the alternative on in the present case) on the basis that the property delivered is not the property covered by the decree or the execution sale, will not come under R. 103 so as to make Article 11-A applicable. But where the relief claimed is in respect of the property covered by the decree or execution sale, rule 103 will apply if the terms thereof are otherwise satisfied. That rule declares that any party against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish his right to the present possession of the property. Rule 100 provides for an application by a person, other than the judgment-debtor, who is dispossessed of his immoveable property under a decree or a purchase in execution of a decree for restoration of possession. On such an application being received, the court has to fix a date for investigation the matter after notice to the party against whom the application is made. Rule 101 states,

"Where the court is satisfied that the applicant was in possession of to property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put in to possession of the property. The procedure prescribed by rules 100 and 101 is only permissive. IN other words, it is entirely in the option of the party dispossessed to apply or not to the court under rule 100 for restoration of possession. If he does not choose to adopt that procedure, it will in no way interfere with his right to resort to any other alternative remedy or remedies that he might be entitled to; for example a suit. But if he takes advantage of the summary remedy provided by rule 100, certain consequences follow, namely, that if there is an investigation and adjudication by a court under rule 101, he would have to challenge the correctness of the order, in case it operates adversely to him by a suit as provided in R. 103. The procedure prescribed in rule 100 being optional, it stand to reason that the applicant could it any time withdraw his application without in any ways affecting his remedy under the general law of filing an independent suit. This principle has been reconginsed in the Full Bench decision of this court in ILR 1942 Mad 363 : (AIR 1942 Mad 41). That case was concerned with the construction of O. XXI R. 63, C.P.C. It was held that in order that Rule 63 might apply, there should be an order against the claimant or the decree-holder, as the as may be and the order need not necessarily involve an adjudication on the merits after an investigation. A dismissal for default, or a dismissal of the petition on the ground that it was not pressed by the applicant, was held to be an adverse order against the party. But the learned judges made it clear that where a claimant wished to abandon his claim and to have it treated as if it had never been made, or where the person objecting to the attachment did not ask for his claim to be adjudicated, it could not be held that there was an adverse order as at attract the provision of Rule 63. Leach C. J., who delivered the judgment of the Full Bench, observed the judgment of the Full Bench, observed that notwithstanding that the order was in the form of a dismissal, if such dismissal was occasioned by reason of the applicant with drawing his petition, the order thereon would not be one which should be challenged under R. 63, thereby attracting the operation of Art. 11 of the Limitation Act.

(13) The question to be decided in the present case is, whether there has been an order of the nature contemplated by Rule 101of Order XXI, If it is held that there has been no order under Rule 101, there would be no obligation on the part of the respondent to challenge the same within the time limited by Article 11-A of the Limitation Act, under Rule 103; the maintainability of the presenter suit in that case has to be judged by another appropriate Article of the Limitation Act, under Rule 103; the maintainability of the present suit in that case has to be judged by another appropriate Article of the Limitation Act. The decision of the question namely whether there has been an order under Order 21 Rule 101 will depend on the construction of the order passed by the executing court on 15-2-1954. The wording of the order is however not happy. Although it is sated that the execution application is "dismissed as not pressed", there is no indication in it as to the circumstances under which such an order was passed, namely, whether it was on account of the withdrawal of the petition by the respondents or on account of their inability to produce evidence in support of their claim. If the endorsement on the application made by the respondents reveals an intention on their part not to pursue further the proceedings, that would only amount to a mere withdrawal. It is, however, contended for the appellant that the dismissal of the re-delivery petition should be regarded as one for default of the party and not a mere withdrawal. We are however, unable to agree with the interpretation. The clause in the endorsement "we have got to prove possession of the properties" gives only the reason which influenced the respondents to withdraw the petition. It cannot therefore be said that the petition was withdrawn on the ground that the respondents could not produce evidence.

(14) In 1933 Mad W. N. 924, a question arose as to the interpretation of an order on an application under Rule 101 in similar terms. The order in that case was :

"the petition is not pressed as the decree-holder has to file a separate suit for the purpose so far as item 3 is concerned. The petition is dismissed in respect of item 3".

Venkatasubba Rao J., held tat the petition could not be held to have been disposed of after an Enquiry or investigation, and that the aggrieved party was to limited to the period of one year under Art. 11-A, for establishing his rights. WE are of opinion that the order in the present case would bear a similar interpretation. It cannot be said in the present case that the re-delivery petition was withdrawn because the petitioners did not and could not produce evidence; what all the party intended was to abandon the petition, intending to pursue the remedies left to him under the general law; the court acquiesced in that course. Rule 100 and 101 contemplate an investigation and a satisfaction of he court concerned that a party was in possession of the property on his own account. The investigation by and satisfaction of the court may be the result of the evidence produced before it or by reason of the default of a party in not producing evidence. In the present case there was neither an investigation nor a satisfaction on the part of the court that the respondents had failed to prove their case. The termination of the proceedings was the result of a voluntary withdrawal by the party. We are therefore, of opinion that the order passed on 15-2-1954 was not one under Order XXI Rule 101 C.P.C., and that it was not necessary for the respondent to have it set aside by a suit under Rule 103. The respondents would be entitled to resort t other remedy under the general law.

(15) This is sufficient to dispose of the appeal, which is dismissed. There will be no order as to costs.

(16) Appeal dismissed.


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