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The Official Trustee of West Bengal Vs. Monmothonath Sadhukhan - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberCivil Suit No. 496 of 1946
Judge
Reported inAIR1953Cal499
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 35 and 97; ;Limitation Act, 1908 - Article 167
AppellantThe Official Trustee of West Bengal
RespondentMonmothonath Sadhukhan
Appellant AdvocateB.C. Dutt, Adv.
Respondent AdvocateP.N. De, Adv.
Cases ReferredGanapati Singh v. Ram Gopal
Excerpt:
- p.b. mukharji, j.1. in this application the official trustee of west bengal asks for an enquiry and investigation regarding resistance and obstruction offered by (1) abdul sukkur moham-mad osman khan, (2) akhtar hossain khan and (3) abdul jalil when the applicant wanted the sheriff to execute his decree for possession of premises no. 17, 17/1 and 17/1/1 kashi nath mallick lane,. calcutta. the application is made under order 21, rule 97, c. p. c. the respondents have appeared and used their affidavits in opposition to this application.2. before discussing the points of opposition, it will be necessary to state briefly the material and relevant facts.3. this suit was instituted by the official trustee on 15-3-1946 against the defendant for the recovery of possession of the said premises.....
Judgment:

P.B. Mukharji, J.

1. In this application the Official Trustee of West Bengal asks for an enquiry and investigation regarding resistance and obstruction offered by (1) Abdul Sukkur Moham-mad Osman Khan, (2) Akhtar Hossain Khan and (3) Abdul Jalil when the applicant wanted the Sheriff to execute his decree for possession of premises No. 17, 17/1 and 17/1/1 Kashi Nath Mallick Lane,. Calcutta. The application is made under Order 21, Rule 97, C. P. C. The respondents have appeared and used their affidavits in opposition to this application.

2. Before discussing the points of opposition, it will be necessary to state briefly the material and relevant facts.

3. This suit was instituted by the Official Trustee on 15-3-1946 against the defendant for the recovery of possession of the said premises which had been let out to the defendant whose tenancy was later determined by notice to quit. The defendant contested that suit. But after some proceedings a decree for ejectment was made on 18-12-1946 in favour of the plaintiff Official Trustee. By that decree the defendant was ordered and directed to deliver quiet possession of the said premises to the Official Trustee. An appeal was preferred by the defendant and during the pendency of the appeal the defendant applied and obtained stay of execution of the decree for possession. The defendant also gave an undertaking to the Court of Appeal to deliver vacant possession if the appeal went against him, so that the Official Trustee would not have to adopt execution proceedings. The appeal was dismissed with costs on 8-4-1948. In spite of the dismissal of the appeal, and in spite of that undertaking, the defendant, however, failed to vacate the premises and give delivery of possession to the Official Trustee, It is alleged in the petition that the defendant avoided proceedings in contempt for breach at his undertaking by residing outside the jurisdiction of this Court. The Official Trustee thereafter started execution proceedings early in July, 1949 when the defendant made another application making the case that he was not liable to be ejected because he was a ticca tenant under the Calcutta Ticca Tenancy Act, Thereafter an issue was directed to be) tried as to whether the defendant was a ticca tenant or not. That proceeding also went against the defendant, and by an order of Banerjee J. dated 2-2-1950 the defendant's application to be declared a tenant was dismissed with costs,

4. Then started the stage of execution and the difficulties still persist although more than 6 years have elapsed since the filing of the suit. The Official Trustee obtained an order directing the Sheriff to put him into possession. When the Sheriff went to give delivery of possession, he was resisted by some individuals and he reported on 5-7-1950 about such resistance. The Sheriff's report of 5-7-1950 which is annexed to the petition of the Official Trustee filed in this Court on 7-9-1950 discloses the following facts as will appear from the relevant extract which I am quoting from the report :

'The defendant was not present but his representatives were there. Besides the defendant there were other sub-tenants coming through him, viz., (1) Sri Ramdeo Burrrian, carrying on business with empty oil drums, (2) A.S.M. Akhtar Khan alias Akhtar H. Khan carrying on business in wooden goods such as planks, boxes etc., (3) Sri Jaisukhlal Doshi carrying on business as photographers, 4. Sheik Rajia carrying on business as musical suppliers, and (5) Sheik Aggar carrying on business in lorries. The above five sub-tenants stated, that they pay rents to the defendant and some of them produced rent receipts and they stated that they were 'not bound by this order and they were not made parties to the suit and they refused to make over possession to the plaintiff or the Sheriff and, therefore, resisted the Sheriff from doing so.' Upon this the Official Trustee made a similar application as the present one for investigation into the resistance and obstruction complained of by the Sheriff in his report of 5-7-1950. This previous application of the Official Trustee met with bad fate on the ground of limitation. Sinha, J. on 13-12-1950 dismissed the application with costs on the ground that the application was barred by limitation under Aricle 167 of the Limitation Act because resistance being offered on 5-7-1950 and the application not having been made before 6-9-1950, which was more than 30 days from the resistance.

5. Then on or about 17-5-1951 the Official Trustee made an application for execution of the said decree asking that the Sheriff should make over vacant possession to him and obtained a fresh writ of possession for that purpose under Order 21, Rule 35. This is the origin of the present application. The Sheriff again went to deliver possession upon this fresh writ of possession obtained by the Official Trustee, but he was again obstructed. The report of the Sheriff dated 10-8-1951 appearing as Annexure 'A' to the petition of the Official Trustee in this application states : 'On my arriving at the site I met one Jonab Abdul Sukkur Mohammad Osman Khan being a tenant of Jonab Akhtar Hossain Khan -- pays rent up to March 1951 at Rs. 180/-per month -- also one Jonab Abdul Jalil, tenant of Sri Rule D. Burman, pays rent up to June 1951 at Rs. 100/- per month. The above-mentioned occupants resist the Sheriff or any one else from taking possession as they are not bound by the order which is not against them.'

6. Upon this resistance the Official Trustee has again made the present application, for enquiry & investigation into the resistance or obstruction offered. This application this time has been made within time in the sense that the resistance was offered on 10-8-1951 & the application was made on 4-9-1951. Notice to the three respondents mentioned in the Sheriff's report requiring them under Order 21, Rule 97 to appear in person before the Judge in chambers to answer the complaint was issued under date 4-9-1951.

7. In pursuance of that notice the respondents have appeared. Two affidavits have been filed -- one by Abdul Sukkur describing himself to be a partner of the firm of Abdul Sukkur Mohammad Osman,' and the other by Abdul Jalil. The points made in their affidavits in opposition may be briefly summarised.

The first contention raised is that this application is also barred by limitation. This contention is based on the allegation of fact that (1) Abdul Sukkur and Mohammad Osman, the two partners of the firm of Abdul Sukkur Mohammad Osman, resisted possession on 5-7-1950 when the Sheriff's officer went to execute the decree and such resistance that has now been made on 10-8-1951 is by them in the same character as before, and (2) Abdul Jalil also resisted possession in the same character on the previous occasion on 5-7-1950. It is the case of Abdul Sukkur and Mohammad Osman & Abdul Jalil that they are not claiming title through the defendant at all but through one Gunendra Nath Sadhukhan who is said to be their landlord's landlord. The immediate landlord of Abdul Sukkur Mohammad Osman is said to be Aktar Khan and the immediate landlord of Abdul Jalil is said to be Ramdeo Burman. Rent receipts granted by Aktar and Ramdeo as well as by Gunendra Nath Sadhukhan appear in the annexure to those affidavits in opposition. Both these respondents make a further point in their affidavits that this application was dismissed for default on 13-3-1952 by Sarkar, J. taut was subsequently restored by him. According to the point taken in their affidavits it is said that such restoration was without jurisdiction and, therefore, this application should be treated as having been dismissed. The fact, however is this that this application was adjourned by the learned Master till 29-4-1952 and notwithstanding such adjournment the matter was mentioned 'ex parte' on behalf of these resisters before Sarkar J. who was not informed of such adjournment and, therefore, Sarkar J. was induced to make the order for dismissal. When the matter was brought to his notice, Sarkar J. was pleased to restore the application and set aside the 'ex parte' order of dismissal for default. As no appeal was preferred from the order of restoration of Sarkar J. I hold that the respondents are concluded on this point and they cannot contend that such restoration was without jurisdiction and void and, therefore, not binding on them. I will, therefore, proceed on the basis that such restoration by Sarkar J. was good, valid, and binding on the respondents

8. Mr. P. N. De who appeared for the respondents marshalled his attack upon this application mainly, if not wholly, on the ground of limitation. His argument is that this obstruction or resistance on 10-8-1951 is a continuation of the old resistance or obstruction on 5-7-1950. The present application should be regarded as barred by limitatior under Aricle 167 of the Limitation Act as it is made on 4-9-1951 and the limitation should be regarded as running from 5-7-1950, being the date of old obstruction.

He relied on the observations in the recent Full Bench decision of the Bombay High Court in -- 'Mukunda Bapu v. Tanu Saku' reported in AIR 1933 Bom 457 (FB) (A). Beaumont, C. J. who delivered the leading judgment in that case observes at page 459: 'I think that if in fact the obstruction is by the same person and in the same character, the mere fact that the decree-holder is applying under a fresh warrant of possession would not make the obstruction a fresh obstruction.'

9. Murphy J. agreed with those observations of the learned Chief Justice but did not deliver a separate judgment. Broomfield J. another member of the Bomba Full Bench in that case, delivered a short judgment stating at page 460 of that report:

'I agree with the learned Chief Justice in holding that the question must depend, on whether the obstruction now offered is an obstruction by a different person or an obstruction by the same person in different circumstances, that is, a fresh obstruction or whether it is merely a continuance of the same obstruction.'

10. The Bombay Full Bench in that case dissented from the view taken in -- 'Kesri Narain v. Abdul Hassan', 26 All 365 (B); --'Shoteenath Mukherjee v. Obhoy Nund Roy', 5 Cal 331 (C), and another Bombay decision in -- 'Vinayak Rav v. Devrao', 11 Bom 473 (D). The Bombay Full Bench agreed with the view taken by the Patna Full Bench in -- 'Raghu Nandan Prosad v. Ram Charan', AIR 1919 Pat 425 (2) (FB) (E) and by the Madras decision in -- 'Muttia v. Appasami', 13 Mad 504 (F).

11. The main feature of the Bombay Full Bench decision is that all these observations on the point were unnecessary and are 'obiterdicta'. There the applicant was asking only for a fresh warrant for possession under Order 21, Rule 35. The Full Bench of the Bombay High Court held that he was so entitled. That would have disposed the appeal because they were not dealing on that application with the rights which might be contended for under that fresh warrant after it had been issued.

This will be clear from the statements in the judgment of Beaumont, C. J. at page 458 of the report where the learned Chief Justice says:

'All that the applicant is asking at the moment is that a fresh warrant for possession may issue under Rule 35 and to that I think he is entitled. That really disposes of the appeal, because we are not dealing today with the rights which may accrue under that fresh warrant. But as the whole question has been argued and as the rights accruing under the warrant will arise for a decision at a later stage of these proceedings, it is I think desirable that we should indicate our opinion upon the point.'

12. The result is that all these observations of the Bombay Full Bench are obiter dicta dealing with a hypothetical problem which did not call for determination.

13. It is also unfortunate that this Bombay Full Bench failed to notice another ruling decision of the Court of Appeal of the Calcutta High Court in -- 'Baranagbre Jute Factory Co. Ltd. v, Raj Kumar Roy', reported in 13 Cal WN 724 (G). There it is clearly laid down that a decree-holder wro has resisted in the execution of a decree for ejectment may apply for possession again and again and, if again resisted, may complain against the second resistance. In that case which was ably argued at the Bar, by Dr. Rash Behary Ghosh, the eminent Jurist of India, appearing with Mr. Man-matha Nath Mukherjee, later to become the Acting Chief Justice of this Court, for the appellants and 'by Sir S. P. Sinha (later Lord Sinha) the Advocate General, for the respondent. The Bench was composed by Chitty J., an eminent Judge with large experience, and Vincent, J. At page 727 of that report the Court states:

'Turning to the merits, the sole point for our determination is whether the present application under Section 328 (Order 21, Rule 97) is barred by limitation. Must the time be reckoned from the first resistance to a writ or from the particular resistance of which the decree-holder complains? There is express authority for the proposition that the particular resistance must be regarded as the turning point, see -- 'Rama Sekara v. Dharamaraya', 5 Mad 113 (H) and -- 'Naraindas v. Hazarilal', 18 All 233 (I), and so far as we have been able to discover there is no case in which a , directly contrary decision was arrived at. There are no doubt cases which decide that a purchaser who has applied for possession under Section 318, Civil P. C. (Order 21, Rule 95) and been resisted, but who has not made a further application under Section 335 (Order 21 Rule 97, Rule 99 and Rule 103) cannot be allowed to apply again for a fresh writ under Section 318 (Order 21, Rule 95). These cases are, however, distinguishable from the present one. Not only is a purchaser on a different footing from a decree-holder in matters of execution but the procedure under Section 335 differs very materially from that under Section 331 (Order 21, Rule 99). It might be said that the Court ought not to issue a second writ under Section 318 to a purchaser who has not availed himself to the full of the special procedure in execution allowed to him though in -- '11 Bom 473 (D)', Sir Charles Sargent appears to have contemplated the issue of a second writ to a purchaser if the second obstruction complained of was by a different person.'

14. Later on on the next page, at page 728 of that report the judgment of the Division Bench of the Calcutta High Court proceeds to lay down:

'A decree-holder, however, is, ordinarily speaking, at liberty to apply for execution as often as may be necessary; provided such application is not out of time or for some other special reason bad in law, it is usually granted. In this particular case, the Court issued a second, if not a third, writ in favour of the decree-holder. It cannot be said that it had no jurisdiction to do so and if the decree-holder was given this fresh writ, there seems to be no good reason for depriving him of the remedy which the law allows in the case of resistance to that writ. There is nothing in the Code which confines the decree-holder to one writ under Section 318 (Order 21, Rule 95), while the words of Section 328 (Order 21, Rule 97) 'such resistance or obstruction' clearly indicate that the month is to run from the time of the particular resistance or obstruction in respect of which the decree-holder is complaining.'

15. These observations in this judgment, appear to me to be clear authority for the proposition that the decree-holder has the right to take out fresh writ for possession and every resistance or obstruction to such writ gives a . fresh period of limitation from the time of that particular resistance or obstruction. The reasons given in the Calcutta decision in --'Baranagore Jute Factory Co. Ltd. v. Raj Kumar Roy (G)', appear to me to be sound and are a complete answer against the view of the Bombay Full Bench. With great respect to the learned Judges responsible for the Bombay Full Bench decision, I am unable to accept that view and I find it does not notice the difference be-ween a purchaser and a decree-holder in the matter of execution as discussed in this Calcutta decision. Then again to say as the Bombay Full Bench decision does, that there may be any number of writs for possession under Order 21 Rule 35 and then to say that the remedy on these writs may be barred by limitation because subsequent resistance to such writs may be by the same person or in the same character as previous writs, is to me an illogical and inconsistent conclusion and such a conclusion unnecessarily cuts down the language of Aricle 167 of the Limitation Act, by impliedly introducing such notions as 'continuous' resistance or resistance 'by same person or in the same character', and unjustifiably reduces the reliefs available on writs for possession applied for and obtained under Order 21, Rule 35. I am therefore unable to follow and adopt the Bombay Full Bench view.

16. The language of Aricle 167 of the Limitation Act or of Order 21, Rule 97 of the Code does not promote the view that in case the obstruction or resistance is by the same person or in the same character, then every time he makes such resistance to every writ of possession it is to be regarded as the original obstruction & therefore, barred by limitation. Continuity of resistance or resistance by the same person or in the same character is a misleading notion in this context. The scheme under the Code on this point must be understood clearly. That scheme as I understand it is this. A writ for delivery of possession is issued under Order 21, Rule 35; then when the writ is in the process of execution, resistance is offered; then a complaint is made under Order 21, Rule 97 and finally this complaint is disposed of either under Rule 98 or under Rule 99. From Order 21, Rule 35 to Order 21, Rule 98 or Rule 99 is one process disposing of and dealing with*1* particular resistance. The cycle may beggin again by another writ for delivery of possession under Order 21, Rule 35, as the decree-holder may apply for as many writs thereunder as necessary until he gets satisfaction of his decree. The same process may be repeated in the case of repeated obstruction or resistance to the second writ under Order 21 Rule 35. When the law allows subsequent writs under Order 21 Rule 35 until satisfaction of the decree, the Court should not in my view cripple such right by saying that it might be defeated if resistance to subsequent writs may be related back to previous resistance by reason either of I continuity or being by the same person or in the same character.

As I appreciate this Aricle 167 of Limitation Act using the words 'the resistance or obstruction', it appears to me that each resistance gives an independent terminus a quo for an application under Order 21 Rule 97. The language of Order 21 Rule 97 of the Code by using the words 'such resistance or obstruction' reinforces that conclusion. If any number of writs of possession can issue under Order 21, Rule 35 of the Code the conclusion is irresistible in my view that every resistance or obstruction to such writ will bring it within the meaning of the words 'such resistance or obstruction' used in Order 21, Rule 97 and it being remembered that complaint under Order 21, Rule 97 is permissive and enabling and not obligatory. Therefore the decree-holder should be entitled to avail as fresh starting point for limitation every time the resister obstructs the Sheriff's writ for possession. Article 167 of the Limitation Act does no more than this, that each obstruction or resistance to be availed of as a ground of complaint under Order 21, Rule 97 must not be allowed to be stale for more than 30 days from its date. If it is, then that particular obstruction or resistance can no longer be used but the decree-holder must take out another writ under Order 21, Rule 35 and if there is again an obstruction, apply within 30 days from its date under Order 21, Rule 97.

17. One more word on the Bombay Full Bench decision. It noticed the old Madras decision -- '13 Mad 504 (F)', but did not notice the later Madras decision in -- 'Meyappa Chetty v. Meyappan Servai', AIR 1921 Mad 559 (J). There it was argued that an application for removal of a second obstruction more than 30 days after acquiescence in a previous obstruction was barred by Aricle 167 of the Limitation Act. That argument was overruled. At p. 561 of that report Oldfield J. says:

'it is material that the Code nowhere supports it explicitly and that Order 21, Rule 97 is worded as merely permissive and as affording a summary procedure, which the obstructed person has an option to use or forgo.'

Ramesam, J., the other member of the Bench in that decision observes at p. 562:

'The only other question in this case is the question of limitation. As to this I have nothing to add to the reasons in my learned brother's judgment. It follows that we do not agree with the remark in -- '5 Mad 113 (H). that the Court ought not to issue a second warrant for delivery of possession.'

Reference may also be made to a recent Madras decision in -- 'Narayanswami v. Verappa', AIR 1949 Mad 753 (K).

18. In the case of -- 'Ganapati Singh v. Ram Gopal', reported in AIR 1941 Nag 322 (L), Pollock J. comes to the conclusion that Rule 97 merely gives the auction-purchaser the right to complain to the Court of the resistance offered to him. If he does so, he must do so within 30 days from the time of such resistance under Aricle 167 of the Limitation Act. But the learned Judge holds that if he fails to do so, that does not take away his right to apply again under Rule 95 for delivery of the property in which case he must apply within 3 years from the date when the sale becomes absolute under Aricle 181. The learned Judge relied on and approved of the decision in -- '13 Cal WN 724 (G)'.

19. For these reasons, I hold that an application under Order 21, Rule 97, Civil P. C. is not barred under Aricle 167 of the Limitation Act if made within 30 days from the particular obstruction or resistance complained of in such application, and the fact that there was a previous objection or resistance to a previous writ for possession by the same person or in the same capacity is immaterial.

20. I am, therefore, of the opinion that this application is not barred by limitation.

21. The main argument on the question of limitation on behalf of the respondents has been on the basis of the Bombay and Allahabad decisions that their present obstruction is in the same character and same capacity as on the previous occasion on 5-7-1950. Even if the Bombay and the Allahabad decisions above referred to are regarded as good law, then this point of limitation can be applied only on that basis of fact. Now, what are the facts in this case? In the Sheriff's report on the occasion of the first obstruction on 5-7-1950, five persons were named but they did not include the present respondents to this application. The present respondents to this application, as will appear from the present report of the Sheriff dated 10-8-1951, are Jonab Abdul Sakkur Mohammad and one Abdul Jalil. Some argument was made that in fact in the notice issued upon the previous application the present respondents were also cited. That, I am afraid, cannot be an answer because from a comparison of the two reports of the Sheriff -- one made on the occasion of the previous resistance on 5-7-1950, and the other on 10-8-1951 -- it is quite clear that the present respondents were not cited as the persons resisting the Sheriff's execution of the decree. I am, therefore, unable to accept their contention made in their affidavits that their present obstruction is in the same character as before. I do not find from the Sheriff's previous report that there was any case of obstruction or resistance by them on the previous occasion.

It is then argued that Ramdeo and Aktar who are said to be the immediate landlords of the present respondents obstructed the previous attempt of the Sheriff and as the present respondents claim title through the previous ob-structers, they come within the principle of obstruction by the same person and in the same character by some kind of extension of the view adopted by the Bombay Full Bench. To me this argument appears to be devoid of any substance whatever. Obstruction by an alleged successor-in-interest or a person claiming through a previous obstructor cannot in common sense or law be regarded as obstruction by the same person and in the same character and certainly cannot be said to be the same obstruction as or continuous with the previous obstruction. On the facts also therefore, I hold that they being different persons for the first time opposing the execution of the decree and creating the obstruction or resistance as against them, the limitation runs from the date of their obstruction or resistance. Hence I hold that this present application as against the respondents is not barred by limitation even on the basis of the Bombay and Allahabad decisions.

22. A reference now to the merits of the defence raised in this application is necessary. The affidavits of Abdul Sekkur and Mohammad Osman state that they are not claiming through the defendant judgment-debtor at all but claim, to be tenant of one Akhtar Khan whose immediate landlord is Gunendra Nath Sadhukhan. They plead in their affidavit. 'I and the said Mohammad Osman claiming the title and/or the right to occupy the premises through the said Gunendra Nath Sadhukhan and/or the said Akhtar Khan but not through the said defendant.' The affidavit of Abdul Jalil is that he also does not claim title through the defendant judgment-debtor at all but through one Ramdeo Burman whose immediate landlord again is the aforesaid Gunendra Nath Sadhukhan. Now both Akhtar Khan and Ramdeo Burman were the persons who are described as resisting the Sheriff's previous execution as will appear from the Sheriff's report of 5-7-1950. Now Gunendra Nath Sadhukhan who is said to be the immediate landlord of both Akhtar Khan and Ramdeo Burman is no other than the son of the judgment-debtor, and the affidavit in reply of Dwijendra Narayan Bhunia affirmed on 7-5-1952 and filed on behalf of the Official Trustee of Bengal makes it quite clear that this Gunendra Nath Sadhukhan had or has no right, title to the suit land or any portion thereof and he only looked after and managed the same on account of his father, the judgment-debtor, and the receipts alleged to have been granted by him are those for and on account of or on behalf of the judgment-debtor. On the Sheriff's previous report both Akhtar and Ramdeo figured as judgment-debtor's tenants. On the affidavits I am satisfied, specially when the respondents have not used any supporting affidavit or even letter from Gunendra Nath Sadhukhan in support of their claim and specially because the respondents' affidavit is careful enough only to say that Gunendra Nath Sadhukhan is the 'immediate landlord' of their landlords, that the objection of the respondents is frivolous and that such resistance or obstruction was without any just cause within the meaning of Rule 98. I have come to the conclusion that the present respondents are acting at the instigation of the judgment-debtor in this case.

This case illustrates in the most singular and striking manner the truth of the statement that the plaintiffs' troubles begin not before the decree but after the decree. Here is a judgment-debtor who for a period of 6 years has persistently avoided obedience to the decree of the Court. He violated his undertaking to the Court of Appeal when he took the stay of execution by undertaking to the Court that he would deliver vacant possession of the premises in suit in case the appeal was dismissed without recourse to execution proceedings. He avoided contempt proceeding against him by keeping out of the way by residing at mufassil.

He violated again his undertaking to the Court of Appeal by starting new proceedings under the Calcutta Ticca Tenancy Act which again was dismissed. On the affidavits I am satisfied that 'it is the judgment-debtor again in these proceedings who has set up these respondents acting at his instigation to obstruct and resist the processes of this Court.

23. I will, therefore, order the Sheriff toput the petitioner in vacant possession of thepremises in suit by removing the respondentsand if they continue such obstruction, by committing the respondents to civil prison. Therespondents win pay the costs of this application. Certified for counsel.


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