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Binoy Krishna Mukerjee and anr. Vs. Satish Chandra Giri and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1927Cal481,103Ind.Cas.561
AppellantBinoy Krishna Mukerjee and anr.
RespondentSatish Chandra Giri and anr.
Cases ReferredSiva Prasad Singh v. Rani Prayag Kumari
- chatterjea, j.1. this is an application for leave to appeal to his majesty in council against an order passed by greaves and panton, jj., on the 8th jan. 1926, directing the removal of the receive appointed by dist. judge of hooghly from a portion of the property in suit.2. the suit was instituted on the 8th january 1922 by certain persons (who may be referred to as the original plaintiffs) under section 92 of the civil procedure code, with the sanction of the collector, for the removal of the defendant from the office of mohunt of tarakeswar, for appointment of a fit person as mohunt or trustee, for a declaration that the properties claimed by the defendant as his personal properties are debutter, for framing a scheme of management and for various other reliefs. the defendant was charged.....

Chatterjea, J.

1. This is an application for leave to appeal to His Majesty in Council against an order passed by Greaves and Panton, JJ., on the 8th Jan. 1926, directing the removal of the Receive appointed by Dist. Judge of Hooghly from a portion of the property in suit.

2. The suit was instituted on the 8th January 1922 by certain persons (who may be referred to as the original plaintiffs) under Section 92 of the Civil Procedure Code, with the sanction of the Collector, for the removal of the defendant from the office of mohunt of Tarakeswar, for appointment of a fit person as mohunt or trustee, for a declaration that the properties claimed by the defendant as his personal properties are debutter, for framing a scheme of management and for various other reliefs. The Defendant was charged with having attempted to set up a title adverse to the trust with respect to many properties, with misappropriation of large sums of money and moveables belonging to the debutter, with mismanagement and waste of debutter estates, neglect of the charities and various other allegations were mad& with respect to his management and character.

3. The defendant filed his written statement denying the allegations made against him.

4. In the beginning of January 1924 certain persons called the Mahabir Dal purporting to be actuated by a desire to remove all malpractices of religious muths took possession of the temple and the neighbouring lands. Later on, they were joined by other' persons - and there was great feeling against the mohunt. As a result of their activities the mohunt was unable to attend to the muth or the ceremonies; he had to go away from Tarakeswar, and a chaotic condition prevailed there.

5. On the 12th May 1924, the original plaintiffs applied for appointment of a Receiver, and on the 16th May 1924 the mohunt consented to the appointment of a Receiver in respect of (i) the temple, (ii) the bazar, (iii) offerings to the deity and (iv) deb sheba, and one Shama Charan Banerjee Ukil, a retired Sub-Judge, was accordingly appointed Receiver in respect of the same.

6. On the 2nd August 1924 certain persons who may be referred to as the added plaintiffs applied with the permission of the Collector to be added as plaintiffs, and they were added as plaintiffs. On the 22nd September 1924, a petition of compromise between the original plaintiffs and the mohunt was put in, the main term3 of which were that the mohunt abdicated the mohuntship, and his chela Probhat Chandra Giri was to be appointed mohunt, that the temple, the land and other buildings appertaining to the temple and all offerings made by pilgrims and other worshippers should form part of the debutter property. Certain properties which were admitted to be de-butter in the list ka annexed to the petition would be managed by a committee, and the alleged personal properties mentioned in the list kha would be managed by Probhat Giri, subject to certain conditions arid subject to the right of the said committee to take over charge in case of oppression and mismanagement by the said Probhat Giri, and the tenants of those properties would have the right of appeal in any matter of oppression to the said committee. Shortly before the petition of compromise was put in, the mohunt at a public meeting declared that he was abdicating the mohuntship.

7. An application was made by the original plaintiffs to take off the names of the added plaintiffs, which was rejected by the District Judge on the 25th September 1924. Then the added plaintiffs applied on the 1st November 1924 for the appointment of a Receiver of all the properties. The original plaintiffs on the 2nd December 1924 preferred an appeal to the High Court against the order refusing to strike off the names of the added plaintiffs, and further proceedings were stayed. The appeal was, however, dismissed and the stay order was removed.

8. On the 28th March 1925 the District Judge refused to sanction the compromise between the mohunt and the original plaintiffs referred to above. On the 9th May 1925 the application of the added plaintiffs for appointment of a Receiver was taken up, and a Receiver of the entire properties was appointed, the actual appointment being made later.

9. An appeal was preferred by the mohunt, and the same was heard by Greaves and Panton, JJ., on the 8th January 1926. The learned Judges classified the properties as follows : - (a) Properties admitted as debutter, (b) properties treated as debutter, and (c) properties known as personal properties of the mohunt. It was ordered that the Receiver would continue in possession in respect of classes (a) and (b) but would be removed in respect of properties class (c), and the District Judge was directed to frame a scheme for the residence of the mohunt which would include his office in a portion of the building known as the 'palace.' Liberty was reserved to either party to apply in case any dispute arose as to what should be comprised in the private properties, and it was directed that the scheme to be prepared by the District Judge with regard to the place would come up before the learned Judges for sanction and for such alterations as they might think fit.

10. Subsequent to the order of the High Court, the mohunt in a petition before the District Judge claimed 34 items of properties as his personal properties. On the 29th January 1926, the present application for leave to appeal to His Majesty in Council was made by the added Plaintiffs.

11. The order passed by the High Court on the 8th January 1926 is not a final but is an interlocutory order. The case, therefore, cannot come under Clauses (a) and (b) of Section 109 of the Civil P.C., and the question we have to consider is whether the case comes under Section 109(c), that is, whether it is 'otherwise a fit case for appeal.'

12. The power of the Court to deal with applications under Clause (c) of Section 109 and the decisions on the point were considered by Sanderson, C. J,, and Richardson, J., in the case of Shiva Prasad Singh v. Rani Prayag Kumari the Jheriah case A.I.R. 1992 Cal. 479. The power is rarely exercised, and should be exercised only in exceptional cases of great public or private importance. See Banarasi Prasad v. Kashi Krishna Narain [1900] 23 All. 227 and Damra Coal Co. v. Benares Bank [1914] 21 C.L.J. 281.

13. We have therefore to see whether it is a case of an exceptional nature involving questions of real importance. It is contended for the respondents that no case at all was made out for the appointment of a Receiver, no evidence having been adduced to prove the charges made in the plaint against the mohunt, that there was no case for the appointment of a Receiver even of the properties of classes (a) and (b), but that as no objection was made on behalf of the mohunt with respect to classes (a) and (b), the High Court ordered the Receiver to continue in possession of the said two classes of properties.

14. It appears that the District Judge appointed the receiver on the grounds among others, that the mohunt in the written statement had set up a title adverse to the trust, that there was a breach of trust, that he had abdicated in favour of another person, and such abdication was unconditional, that under the scheme set forth in the 'terms of settlement,'

certain persons improperly obtained certain advantageous terms, and an attempt was made 4o induce the Court to give its sanction to the unfair arrangement,

and that what the mohunt did in the matter was for his own safety and convenience and not for the welfare of the religious endowment of which he was a trustee, that the mohunt had been obliged to leave Tarakeswar and went outside Bengal, that he was 'utterly dispossessed' of all properties situated in Tarakeswar, and that if he could not have access to Tarakeswar, to the temple, the bazar, the place, etc., 'it is inconceivable how he can successfully administer the properties,' that no rents were being realized, that there was real danger to the properties in suit if left in the possession of the mohunt, and that in the circumstances it was just and convenient that a Receiver should be appointed.

15. The learned Judges of this Court were of opinion that there was considerable delay in making the application for the appointment of a Receiver. The suit was instituted on the 8th September 1922, and the original plaintiffs made an application for appointment of a Receiver, on the 12th may 1924 and the added plaintiffs made the application on the 1st November 1924. But it is pointed out for the appellants that they come upon the scene only on the 2nd August 1924, and proceedings were stayed by the High Court at the instance of the original plaintiffs, and that as soon as the stay order was removed, they (the appellants) proceeded with their application.

16. The learned Judges attributed the abdication of the mohunt and the settlement arrived at by the mohunt to the force of circumstances. The Appellants also point out that matters at Tarakeswar were in a chaotic condition the first Receiver, though an officer of the Court, had to go to take possession accompanied by a hundred constables, that even ha could not get peaceful possession of all the properties, and that it was not until the present Receiver was appointed Receiver of the entire estate that things settled down, and that these circumstances amply justified the appointment of the Receiver. It is further contended that the order appointing the Receiver has not been set aside by the High Court, and the question at the hearing of the appeal before the High Court was, narrowed down to whether the properties claimed by the mohunt as personal should be left in the hands of the Receiver. The question, whether the appointment of the Receiver of the entire estate was proper or whether the order of the High Court is right, is one for the decision of the Judicial Committee, and it is not open to us to express any opinion upon the point. I have referred to the facts only to show the circumstances under which the appointment of the Receiver was made by the District Judge.

17. When this matter came up for hearing before us on the 8th February 1926, various grounds were urged before us for granting the certificate of leave to appeal. Shortly stated the contentions of the appellants were (1) that the order will give rise to protracted enquiries as to which of the properties were treated as debutter and which are claimed by the mohunt as his personal property especially as many of the 34 items now claimed before the District Judge were not so claimed in the written statement; (2) that the 'palace' was not claimed at all as personal, and that the direction to set apart a portion of it for the use of the mohunt as his residence and office will inevitably lead to friction; (3) that things at Tarakeswar have settled down only recently after the present Receiver ?was appointed in respect of the entire properties, and the management of the mohunt of a portion of the estate will lead to serious troubles again : (4) that the charities will suffer; and lastly that the income of the zemindaris which may be made over to the mohunt will be absolutely lost to the estate.

18. As the order of the learned Judges was not complete, we allowed the application to stand over, as we desired to have the orders of the Division Bench in a final form before deciding upon the application. The learned Judges have since completed their order.

19. The first ground, viz., that the order of the learned Judges, dated the 8th January 1926, would give rise to protracted enquiries as to which properties were treated as debutter, and which are claimed by the mohunt as personal, has no force now, as the learned Judges have by their order, dated the 26th March 1926, held that all the properties claimed by the Respondent as personal (except a few mentioned therein) should be treated as his personal properties for the purposes of the application.

20. The learned Judges were of opinion that the mohunt had been in possession of those properties as personal for a long time past. It is pointed out on behalf of the appellants that Madhab Giri, whom, the defendant succeeded as mohunt, brought a suit in 1878 against one Sham Chand Giri (who had dispossessed him) and set up his personal title to the properties, but that title was negatived, and he succeeded on the ground that the properties then in suit were debutter. The judgment of Mr. Brett, the District Judge, in that suit is on the record, but it was not tendered in evidence. The appellants wanted to use that in evidence in this Court but the respondents objected.

21. It is contended for the appellants that apart from the findings in Mr. Brett's judgment, the defendant in para. 23 of his written statement admitted the fact of the properties (mentioned in Schedule A of the plaint) having been held to be debutter by Mr. Brett, and only pleaded that the finding was merely incidental and that in the circumstances in which Madhab Giri was placed at the time of that suit, he was not in a position to produce complete evidence in support of his claim. It is accordingly contended for the appellants that the properties belonging to the estate up to 1878 were found to be debutter.

22. The properties converted by Mr. Brett's judgment are mentioned in Schedule A of the plaint of the present suit and those subsequently acquired by Madhab Giri are described in Schedule B of the plaint. It is urged that in the face of Mr. Brett's, judgment which is sufficient prima facie-evidence in an interlocutory proceeding,, and having regard to the fact that the mohunt succeeded Madhab Giri under his Will, he cannot claim any of these properties as his personal properties. These are, however, matters to be decided in the suit.

23. It is next contended that in any case-the learned Judges were wrong in treating, them as personal properties without any enquiry whatsoever and that it constitutes a grave injury to the plaintiffs. But that is not a question to be decided by us. Rightly or wrongly they have held that the properties are to be treated as personal properties of the mohunt for the purposes of this proceeding and there is-no necessity therefore for any enquiry into the matter.

24. The second ground is that in any case the 'palace0' has not been claimed by the mohunt in his written statement or anywhere else as his personal property. This is admitted on behalf of the mohunt but it is contended that there is nothing to prevent the Court from making a special order and directing a portion of the palace to be used by the mohunt.

25. The District Judge in submitting the scheme as ordered by the Division Bench observed that the palace was never meant for the occupation of two persons independently, still less of two per3on3 having adverse interests and that the preparation of the scheme was a difficult one but he nevertheless submitted three alternative proposals for the consideration of the High Court and also sent up a report of the Receiver, dated the 9th March 1926, for consideration of the High Court before finally sanctioning the scheme. The Division Bench by their order, dated the 31st March 1926 accepted the first alternative proposal, and directed that:

the Receiver will give possession to the mohunt of that portion of the palace other than what according to the order just passed is reserved for the Receiver and except that part in which neither the mohunt nor the Receiver are to be allowed to live.

26. It is contended on behalf of the appellants that if the mohunt is allowed to reside in a portion of the palace and if his office and the Receiver's office be in the same building, it will inevitably result in serious troubles and confusion again.

27. The Appellants referred to the report of the Receiver, dated the 9th March 1926, to the District Judge where he stated as follows:

I should mention again in this connexion that the Congress party or the Sabyagrahis quietly delivered possession of the temple to me pursuant to the decision arrived at by Mr. M.K. Gandhi and Mr. C.R. Das and in doing so they (Satyagrahis and Mahabir Dal) gave me to understand that they did so as I was going to take possession of the entire property from the mohunt and that if the mohunt got back to the palace or to the temple they would again start Satyagraha.

So that the risk of fresh troubles to meet which public authorities were recently put under a high strain if the mohunt should come back and take up his residence at Tarakeswar which he had so long kept away from, is not over, and there is considerable apprehension that Satyagrahis may again appear on the scene and create disturbance, the past history of which. I need hardly recall in this connexion. In short I apprehend a serious breach of the peace on the arrival of the mohuut Maharaj at Tarakeswar. I am corroborated in thin view of the situation by no less an authority than the District Magistrate himself.

Besides I apprehend considerable trouble from the mohunt himself and his men and officers who will interfere with my work, and the location of his office along with my offices in the place will lend countenance to the efforts of his men who might pick up quarrels with my men as his men and retainers have no great reputation for peaceable ways. For the offices, treasury, record room and every thing important relating to this estate are within the palace and his residence in the heart of all this is likely to create confusion in my work and exercise a demoralising influence on the present administration as I have in my employ almost all the old officers of this estate who as well as the local adherents of the mohunt Maharaj, about whose propaganda I have submitted many reports, will not, I am affraid remain within proper bounds and discipline.

Daring this short period of my management here, there have been sufficient grounds for my raising t he objections set forth above, and soma specific cases of his attempt to interfere with and obstruct me in the management of the estate, some directly through his men and officers including the manager and some indirectly by his adherents who are still actively at work at Tarakeswar and in the mahals, have confirmed my apprehension on the score of the possible dangerous consequences of his residence in the pal ace at Tarakeswar close to my offices there.

I beg leave to state further that there are no other suitable buildings or houses at Tarakeswar where my office, which contains valuable moveable and important papers as well as money belonging to this estate can be accommodated.

The suit No. tf8 of 1922 is directed inter alia against the maladministration of the endowment by the defendant and for his removal from office; if, therefore, the endowment is to be preserved in status quo ante without any devastation and the pilgrims and the other persons interested in the endowment are to be secured unmolested in their acts of worship, etc., and it the administration of the estate is to be kept altogether free from the personal intervention of the mohunt during the pendency ,of the suit it would be very desirable to hold our respective offices separately and far from one another's.

28. The third ground is that serious complications will arise if the zemindari properties be made over to the mohunt. It is contended that since 1924 the mohunt had left Tarakeswar and there was no responsible person to manage the estate or the sheba of the deity, and in the then chaotic condition of things, the Court could not but appoint a Receiver. It is further contended that the mohunt's resuming the management of a portion of the estate, and holding office in a position of the palace, would inevitably lead to fresh troubles and confusion resulting in grave injury to the estate and serious inconvenience to the public and the pilgrims. It is pointed out that payment of rents had been stopped by the tenants. The District Judge's finding on the point is as follows:

It has been definitely stated in the plaintiff's affidavit that sometime ago the defendant went to Tarakeswar and tried to regain his position but he was unsuccessful and had to leave. Tarakeswar again two months ago. This fact has not been denied. It is alleged by the plaintiffs that certain third parties have been instigating the tenants not to pay rent and as a result no rents are being relised. So the income of the endowment has considerably fallen and the mohunt is powerless to do anything because his opponents are too powerful for him. One of the tenants himself has sworn an affidavit that he himself has been intimidated and he has not been able to pay rent himself. As against this in the counter-affidavit it is only sworn that the mohunt is in peaceful possession of all the properties except those with respect to which a Receiver was appointed, that he has been realising rents as usual and that the person who swore the affidavit is no tenant at all. In the facts of the case, I cannot believe the statement in the counter-affidavit. It is unlikely Kenaram Chatterjee will admit his liability to pay rent when he is not a tenant himself, and if one or a few of such tenants have come forward to state their grievances, it is very probable there is a bulk of tenantry in a similar predicament. Such a state of things cannot be said to be beneficial to the estate.

29. The Receiver in his report, dated the 15th July 1925, to the District Judge stated that he had got possession of the entire estate, the tenants were paying rents and the officers of the estate were carrying out his orders.

30. Reliance was placed on behalf of the appellants upon an affidavit, dated the 1st February 1926, in which it is stated:

That from the beginning of 1921, disturbances commenced at Tarakeswar, as a result of of which the entire administration of the temple and worship as well as of the estates in the hands of the defendant mohunt was upset, and the mohunt left Tarakeswar and left the management of affairs there to drift. The result was considerable maladministration of the estate and great hardship and inconvenience to the public and the pilgrims who went to offer pujas to the deity at Tarakeswar.

That the state of disturbance and mis management continued unabated till the appointment of a Receiver for the entire estate. That upon his appointment the present Receiver took over Peaceful possession of the estate as well as of the temple which was at that time in possession of the Congress people, and order and good administration has since been restored and the convenience of pilgrims and the public has been secured.

That after the passing of the order of the Hon'ble High Court releasing soma of the properties from the hands of the Receiver, declarations have been publicly and privately made by Swami Sachidananda and other persons who were chiefly responsible for the previous disturbance, threatening to resume a campaign of Satyagraha the moment the mohunt attempted to take back possession from the Receiver of the properties released to him by the order of the Hon'ble Court.

That these declarations and other preparations for the purpose of resuming obstruction have, created considerable alarm in the minds of the people of Tarakeswar and the neighbourhood and it is apprehended that the recrudescence of the disturbances would lead to fresh discomfort and insecurity of worshippers and pilgrims at Tarakeswar and neglect and maladministration of the estates.

That after the passing of the order of the High Court above referred to the mohunt's officers and men have been visiting Tarakeswar and the neieghbouring villages, within the admitted debutter properties as well as in the other properties, and both the deponents have severally heard them telling people in their presence that the mohunt would be coming back very shortly and take possession of all the estates and the temple and would punish all persons who go against him with violence and other serious harm.

That durwans and officers of the mohunt have also been trying to induce the tenants of the Tarakeswar estate not to pay rents to the Receiver and are distributing leaflets and carrying on other propaganda against the administration of the Receiver.

That a great commotion and unrest has been caused among the inhabitants of Tarakeswar and the neighbourhood as well as among the tenants of other estates admitted to be debutter and claimed by the defendant mohunt as his nij properties, and as a result of these movements we apprehend that if the properties are handed over to the mohunt, there would be serious danger of disturbances and loss to the endowment.

31. The fourth contention is that the> charitable institutions which are of great importance to the public will suffer, if a portion of the income of the estate goes to the mohunt. According to the mohunt the income of the immovable properties claimed by him as personal is Rs. 30,000 a year, while according to the plaintiffs the net income thereof is Rs. 81,000 a year. The income of other immovable properties in possession of the Receiver is Rs. 7,000 besides the income from the offerings and bazar, etc., is said to be Rs. 81,000 a year. There is an affidavit on behalf of the mohunt giving figures for three years to show that the net income does not on the average exceed Rs. 30,000 a year. The appellants say that the figures refer to the collections only and that the mohunt had chosen the particular three years in giving the figures. However that may be, it is contended that the expenses connected with the charities were met from funds of the entire estate while in the hands of the mohunt, and the income of the estate will be diminished by at least Rs. 30,000 if the properties claimed by the mohunt as personal be made over to him.

32. The last ground is that at least Rs. 30,000 a year will be absolutely lost to the estate in the event of the suit being decreed, if the properties claimed by the mohunt as personal be made over to him pending the suit, as the mohunt has no properties other than those claimed as personal, and no security has been ordered to be taken from him, and this will cause irreparable injury to the debutter estate.

33. The 1st of June has been fixed for the hearing of the suit, but we were told that commission have been issued for examination of witnesses all over India, and having regard to the course the suit has hitherto taken, there is no certainty when the suit will be heard.

34. The case is of a peculiar nature. Of course threats which may be held out by third parties to create disturbances should not deter the Court in making orders securing to parties their just rights. But leaving such threats out of account, having regard to the exceptional circumstances stated above, I think the case involves questions of great public importance, and in my opinion it is a fit case for appeal under Section 109(c) of the Civil Procedure Code. Let a certificate be issued accordingly.

Rankin, J.

35. As my learned brother after much consideration is of opinion that a certificate should be granted, I will not dissent, partly because it may turn out that public interest is involved but chiefly out of deference for his opinion. As this suit was instituted on 15th September 1922 and as the certificate asked for in 1926 concerns only the more or less of the properties over which a Receiver should be appointed before trial, I desire to add some observations of my own since I much fear lest we be throwing open one of the few opportunities of delay, complication and expense which settled practice has hitherto kept closed. The order complained of has discharged the Receiver so far as regards properties claimed by the defendant to be his own. There is room here for difference of opinion as to what is just and convenient before trial, and it may be conceded without any disrespect to the Division Bench that another tribunal might take the same view as the District Judge.

Unless however the applicants can put their case on a much stronger and more special ground than this, a certificate, under Section 109, Clause (c) of the Code, must be refused. There are two decisions of this Court which show this very clearly. One is Chundi v. Parmanand [1895] 22 Cal. 928 and the other is Md. Musaji Saliji v. Ahmed [1911] 13 C.L.J. 507. In these cases as in the present case there had been a difference of opinion between the Courts in India. The extreme undesirability of protracting interlocutory proceedings is based partly on the fact that in point of expense it may well be the plainest oppression and partly on the fact that it tends to postpone a real elucidation of the facts by a trial of the suit. In the present case a new consideration appears prominent since it seems clear that the suit could and should be heard in less time than it will ordinarily take to obtain the judgment of the Judicial Committee upon the proposed appeal. If therefore this certificate is followed by a stay of the order appealed from, that order is in effect reversed : if it is not followed by a stay, it is likely to be ineffective altogether.

36. Interlocutory orders are, certainly within the ambit of Clause (c) of Section 109; but what Lord Hobhouse in Banarasi v. Kashi [1900] 23 All. 227 and Lord Buckmaster in Radha Krishna v. Swaminatha A.I.R. 1921 P.C. 25 have said as to this not specially addressed to this clause is not specially addressed to this particular class. They point out that where a right is decided, public or private importance may take the place of a high money value as a ground for leave to appeal, especially in cases, e.g., as to caste rights, which are not capable of being valued in terms of money. There are, however, two cases in this Court as to interlocutory orders, viz., Damra Coal Co. v. Benares Bank [1914] 21 C.L.J. 281 and Shiva Prasad Singh v. Rani Prayag Kumari the Jheria case A.I.R. 1922 Cal. 479. These are both cases in which it was thought doubtful whether the order complained of was not such as to incapacitate one of the parties from effectively maintaining his case. The suit in the Damra case (1914) 21 C.L.J. 281 was to set aside a mortgage as fra3u-lent. The High Court reversed an order of the trial Court for an injunction restraining the execution, pending trial, of the mortgage decree. This meant that whether the decree was or was not fraudulently obtained, it was to be executed. Again in Siva Prasad Singh v. Rani Prayag Kumari the Jheria case A.I.R. 1922 Cal.479 the party who had succeeded was restrained from dealing with the property and required to deposit a large sum in Court. There appeared to be grounds for saying that restrictions imposed upon a party in possession were oppressive and in their cumulative effect crippling. I rather gathered from the argument at the Bar that the discretion exercised in these cases is in some little danger of being regarded as authority for the proposition that in debatable cases interlocutory matters should at the option of the party complaining be taken to England provided only that they have a certain 'public or private importance.' I think it important to discountenance any such idea. Incidental matters and temporary matters may have a great deal of private importance, and the desirability of taking interlocutory orders on appeal to England involves practical considerations of a special character.

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