Full Judgment Text
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PETITIONER:
JETHABHAI KHATAU & CO.
Vs.
RESPONDENT:
LUXMI NARAYAN COTTON MILLS LTD. & ORS.
DATE OF JUDGMENT10/04/1981
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
GUPTA, A.C.
CITATION:
1981 AIR 1201 1981 SCR (3) 449
1981 SCC (3) 61 1981 SCALE (1)800
ACT:
Constitution of India 1950, Art, 136-Interim orders by
the High Court-Interference by Supreme Court-When arises.
HEADNOTE:
The appellant filed a suit for recovery of certain
amounts due from the first respondent company. By the time
the suit came up for hearing the first respondent company
was superseded and an Administrator was appointed. The suit
was compromised and a consent decree was passed, the company
being held liable and directed to make payment of Rs. 2.85
lakhs with interest at 6% from the date of the decree. The
first respondent company received a sum of about Rs. 15
lakhs from the Custodian of Enemy Property as compensation
in respect of certain Cotton mills owned by it. The third
respondent was appointed a receiver in respect of this
amount and he deposited a sum of Rs. 8 lakhs of the
compensation amount into a fixed deposit account with a
Bank. The decretal amount having become due and payable the
appellant by an order dated April 12, 1978 obtained an
interim attachment of the money in the fixed deposit account
of the bank, which was confirmed by order dated April 24,
1978 on May 4, 1978 upon a petition by the appellant, the
Court directed the receiver, 3rd respondent to pay the
decretal amount to the appellant out of the amount in the
fixed deposit account of the judgment-debtor with the Bank.
As this order was not implemented, the appellant again moved
the Court and by its order dated the May 24. 1978 the Court
directed the receiver to pay the amount to the decree holder
and the Bank, the keeper of the fixed deposit account of the
receiver was also put under an obligation not to raise any
objection on the receiver withdrawing the money and paying
the same to the decree holder. These directions not being
obeyed, the appellant moved the Court for holding the third
respondent receiver and the fourth respondent Bank in
contempt and for passing appropriate orders for punishing
them for contempt. Respondents 5 and 6 were in the meanwhile
appointed as joint receivers. A solemn undertaking was given
by the Bank to the Court that the decretal amount would be
paid. In view of the undertaking the Court did not pass any
orders on the contempt application. On March 7, 1980 the
Court declined to grant the prayer for discharge of the
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receiver 3rd respondent and directed that the balance after
payment of the decretal amount in the fixed deposit account
will be held by the receiver. The Court however at the
instance of the joint receivers-Respondents 5 and 6 stayed
the order for a fortnight.
450
Three appeals were filed against the order dated March
7, 1980. Two appeals were preferred by the Ist respondent
company and one appeal was preferred by 2nd respondent,
State of West Bengal. In the appeals preferred by the Ist
respondent company the High Court by its order dated March
27, 1980 granted ad interim stay in the matter, by directing
that the Bank would not disburse any amount in respect of
the fixed deposit account and by issuing an injunction
restraining the appellant from obtaining any payment.
Allowing the appeals to this Court,
^
HELD: The order made by the Division Bench on March 27,
1983 and continued on September 9, 1980 are set aside. The
order dated May 4, 1978 and May 24, 1979 as also the
undertaking given by the Manager of the 4th respondent Bank
through its Counsel on June 7, 1979 would be revived and
would be effective and will have to be implemented. The 4th
Respondent Bank will pay the decretal amount to the
appellant, the appellant shall pass a receipt acknowledging
receipt and the liability of the 4th Respondent company to
the 3rd Respondent receiver shall thereupon stand
discharged. Before the amount is paid, the appellant shall
give security to the satisfaction of the High Court and also
an undertaking on affidavit that in the event of the appeals
being allowed, the appellant shall deposit the said amount
with the High Court within one month from the date of the
order of the appellate Bench. [459 C-F]
2. This Court ordinarily does not interfere with
interim orders unless and until manifest injustice
convulsively shakes it. [455 E]
In the instant case the interim order made by the
Division Bench on September 9, 1980 confirming the ad
interim order dated March 7, 1980 has to be interfered to a
limited extent to avoid the impression that the Court’s
process can be lightly trifled with. [458 H]
3. Failure to comply with the Court’s mandatory
directions led the appellant to file a petition for
contempt. The alleged contemners impleaded were Ist
respondent company and the 4th respondent Bank. At the
hearing, counsel for the 4th respondent unreservedly agreed
to comply with the order of the Court. It was because the
Bank unreservedly and unconditionally agreed and undertook
to pay up the amount that the motion for taking action in
contempt was discharged by the Court. [457 E, H]
4. The order dated June 7,1979 is not a fresh order on
merits. It was merely an implementation of the order dated
May 24, 1979 which appears to have become final and binding.
[158 A]
5. The three appeals were preferred against the order
dated March 7, 1980. That order had nothing to do with the
order dated May 24, 1979 or the order dated June 7, 1979. At
any rate, the order dated May 24, 1979 appears to have
become final. [458 D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1256-
1258 of 1981.
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451
Appeals by Special Leave from the Judgment and Order
dated 9.9.1980 of the Calcutta High Court in Appeal Nos. 94,
122 & 95 of 1980 respectively.
S.N. Kacker and H.R. Puri for the Appellant.
Shankar Ghosh, B.P. Maheshwari and Miss Asha Jain for
Respondent No. 1.
Dalip Sinha, G.S. Chatterjee and P.K. Chatterjee for
Respondent No. 2.
The Judgment of the Court was delivered by
DESAI, J. M/s Jethabhai Khatu & Co., a partnership
firm, is the appellant in all the three appeals. The
respondents in all the three appeals are: (1) Luxmi Narayan
Cotton Mills Ltd., an incorporated Company (’company’ for
short), (2) State of West Bengal, (3) S.K. Dutta, who was
for some time a receiver appointed by the High Court; (4)
Grindlays Bank, (’Bank’ for short), having a fixed deposit
account in the name of Receiver. S.K. Dutta on behalf of
Luxmi Narayan Cotton Mills Ltd., (5) A.K. Dutta, and (6)
R.C. Deb, who claim to have been appointed as joint
receivers after removal of Sh. S.K. Dutta.
Appellant filed suit No. 1194/66 against the company on
the original side of the Calcutta High Court to recover a
certain amount due under two separate heads. By the time the
suit came up for hearing the board of Directors of the 1st
respondent company was superseded and one Gurudas Sharma was
appointed as an Administrator. The Administrator on behalf
of the 1st respondent company entered into a compromise with
the appellant in respect of the claim in suit of the
appellant and after obtaining leave of the Court to settle
the matter, invited a consent decree by which the company
was held liable and directed to pay Rs. 2,85,000 with
interest thereon at 6% per annum from January 6, 1970, the
date of the decree, till realisation. The Ist respondent
company was given an option to pay the decretal amount by
monthly instalments of Rs. 5,000, the first instalment
becoming due and payable on March 15, 1970, and each
subsequent instalment to be paid by 15th day of the next
succeeding month. The default clause in the consent decree
provided that if the company committed default in payment of
any two instalments within the time stipulated in the
decree, the whole of the decretal amount and the interest on
the balance of the decretal
452
amount will become due and payable at once. It appears that
the Ist respondent company received Rs. 15,00,000 from the
Custodian of Enemy Property in respect of its cotton Mills
situated in Narayanganj, Bangladesh. The 3rd respondent S.K.
Dutta appears to have been appointed a receiver in respect
of this compensation amount and he appears to have deposited
Rs. 8,40,000 out of the compensation amount in fixed deposit
account evidenced by receipt No.1002-2539 with the Bank at
its Netaji Subhash Road Branch, Calcutta. The appellant, by
an order dated April 5, 1978, of the Calcutta High Court,
obtained leave to execute the decree by attachment of funds
lying in the hands of the 3rd respondent receiver S.K. Dutta
(Annexure ’D’). By the date of the order Rs. 4,20,702.94 p.
had become due and payable under the decree. Pursuant to
this order an interim attachment was levied under order 21
Rule 52 C.P.C. On the amount covered by the aforementioned
fixed deposit receipt, and accordingly the Master of the
Court, Shri S.K. Ghosh informed the 3rd respondent receiver
by the writ of the Court dated April 12, 1978, that the
receiver shall hold the money under the fixed deposit
account subject to such order as may be made respecting the
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same in the suit in which he had been appointed a receiver
and subject to further orders of the Court (Annexure ’E’).
The Master confirmed the interim attachment by his order
dated April 24, 1978 (Annexure ’F’). On May 4, 1978 upon a
petition by the appellant the Court directed the receiver
3rd respondent to pay the sum of Rs. 4,20,702.94 to the
appellant decree-holder out of the amount in the fixed
deposit account of the judgment-debtor with the Bank in
fixed deposit receipt No. 1002-2539 standing in the name of
the receiver which was attached in terms of order dated
April 12, 1978, as confirmed by the order dated April 24,
1978. Presumably neither the 3rd respondent receiver nor the
Bank effectively implemented the order dated May 4, 1978,
whereupon the appellant moved the Court during the vacation
on May 24, 1979, for an appropriate direction and a learned
single Judge of the Calcutta High Court working as vacation
judge gave the directions prayed for. As this order has some
legal consequences in this matter, it would be advantageous
to extract it. It reads as under:
"There will be an order in terms of prayers (a) &
(b) of the petition.
Prayer (a): That the receiver Sudhir Kumar Dutta
be forthwith directed to instruct and intimate to the
Grindlays Bank Ltd., Netaji Subhash Road Branch,
Calcutta, to pay
453
a sum of Rs. 4,29,702.94 p. to the petitioner decree-
holder in terms of the payment order dated 4th May,
1978 out of the amount of the Fixed Deposit of the
judgment-debtor with Grindlays Bank Ltd., in Fixed
Deposit Receipt No. 1002-2539 which has been Lying
attached in terms of the order dated 12th April, 1978
and is confirmed by the order dated 24th April, 1978
and the said Grindlays Bank Ltd., Netaji Subhash Road,
Branch, Calcutta, be directed to pay the said sum of
Rs. 4,20,702.94 p. to the petitioner decree holder;
Prayer (b): That Grindlays Bank Ltd., Netaji
Subhash Road Branch, Calcutta, be directed to pay the
said sum of Rs. 4,20,702.94 p. to the petitioner
decree-holder in terms of the payment order dated 4th
May, 1978, out of the said fixed deposit receipt No.
1002-2539."
Effectively this order of the Court directed the receiver to
pay the amount therein mentioned to the decree-holder and
the Bank, the keeper of the fixed deposit account of the
receiver was also put under an obligation not to raise any
objection on receiver withdrawing the money and paying the
same to the decree-holder. In fact upon its true
construction, the Bank was also under an obligation to take
effective steps to pay the amount mentioned in the order to
the decree-holder. It appears that these directions were not
obeyed. Consequently, the appellant moved the Court for
holding the 3rd respondent receiver S.K. Dutta and the 4th
respondent Bank in contempt and for passing appropriate
order for punishing them for contempt unless they purged
themselves of the contempt.
On June 7, 1979, when the petition for taking action
against the alleged contemners came up before the Court,
respondents 5 and 6 appear to have been appointed as joint
receivers. The Bank appeared through its counsel Mr.
Majumdar and the joint receivers appeared forth themselves
as well as for their respective clients, namely, 1st
respondent company and the 2nd respondent State of West
Bengal. Mr. Majumder, learned advocate for the Bank
undertook to the Court to comply with the order dated May
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24, 1979, to pay the amount therein mentioned to M/s Maharia
& Co. Advocate-on-record for the appellant. The court
directed that on such payment being made the Bank shall be
absolved from all the liability in respect of the said
amount. The Court specifically noted that in view of the
undertaking given by the learned advocate on behalf of the
454
Manager of the Bank, the Court was not inclined to pass any
order in respect of the contempt application and the
application for taking action in contempt was accordingly
disposed of. At this stage. Mr. A.K. Dutta appearing for the
Ist respondent company prayed for stay of a portion of the
order of the Court which prayer was specifically refused
observing that as no fresh orders have been passed on that
day affecting the interests of the said Company, no question
of granting stay of a portion of the order arises. The Court
specifically directed that all the parties and particularly
the Manager of the Bank should act on the signed copy of the
minutes. It appears that the solemn undertaking given by the
Bank was not acted upon. Probably soon thereafter some
interim orders were obtained as would transpire from the
order of Mrs. Padma Khastgir, J. dated March 7, 1980. When
the matter came up on March 7, 1980, the court observed that
there will by no order on the applications before it save
and except that the receiver will hold the balance sum of
Rs. 4,19,697.06p till further order of the Court. The Court
also declined to grant prayer for discharge of the receiver
S.K. Dutta, the 3rd respondent, because notice of the
application was not served upon him. This observation would,
however, establish that till March 7, 1980, the 3rd
respondent was not discharged as a receiver though from the
recitals in the order dated June 7, 1979, it appears that by
that date A.K. Dutta and R.C. Deb were functioning as joint
receivers. In this order it was distinctly made clear that
except what is stated the specifically in the order all
interim orders were vacated. However, the Court at the
instance of joint receivers stayed the portion of the order
dated March 7, 1980, for a period of a fortnight. To clarify
the position it may be mentioned that when the Court
directed that balance of Rs. 4,19,697.06 will be held by the
receiver it would imply that would be the balance after
payment of the amount directed to be paid to the appellant.
Specifically this order has the effect of confirming the
earlier order dated May 24, 1970, to pay the decretal amount
to the appellant.
If appears that thereafter three appeals came to be
filed before the Division Bench of the Calcutta High Court.
Appeal No. 95/80 and Appeal No. 94/80 were preferred by the
Ist respondent company. Appeal No. 122/80 was preferred by
the 2nd respondent State of West Bengal. These three appeals
were preferred against the order dated March 7, 1980, made
by Mrs. Padma Khastgir, J.
In the two appeals preferred by the Ist respondent
company a Division Bench of the Calcutta High Court by its
order dated
455
March 27, 1980, granted ad interim stay as under:
"The Joint Receivers, R.C. Deb and A.K. Dutta are
directed not to part with any money lying deposited
under the fixed deposit receipt No. 1002/2529 in the
Grindlays Bank.
There will be an order directing the Grindlays
Bank Ltd., of 29, Netaji Subhash Road not to disburse
any amount in respect of fixed deposit No. 1002-2539
standing in the name of S.K. Dutta, the fixed deposit
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receipt whereof is Lying deposited with the present
joint receivers R.C. Deb and A.K.Dutta ....
Order of injunction restraining Jethabhai Khatau
and Co. from obtaining any payment out of the moneys
lying in the Grindlays Bank and held by the joint
receivers or receiver."
This interim order was confirmed by the Division Bench by
its order dated September, 9, 1980. Hence these three
appeals by special leave.
Frankly, this Court ordinarily does not interfere with
interim orders unless and until manifest-injustice
convulsively shakes it. Even then, with our usual response
of reluctance to undertake to examine interim orders, only a
notice to show cause why special leave should not be granted
and the interim stay application not be considered, was
issued to the respondents. After notices were served and
counter-affidavits and rejoinder affidavits were filed, this
matter came before us about four weeks back, our hands off
attitude to interim orders manifested itself when we
adjourned the matter for four weeks indicating to the
parties, especially the respondents who are appellants
before the High Court, to take executive steps to get their
appeals placed on the cause list for hearing and to move for
expeditious disposal of the same. We also declined to grant
any interim relief. We so adjourned the matter in the fond
hope that we may hang on to our tenuous view that ordinarily
we would not undertake to deal with interim orders. Our hope
has proved a mirage.
When this matter was listed before us on April 3, 1981,
Mr. Kackkar, learned counsel for the Appellant stated that
almost within the dying embers of the time granted by this
Court an attempt was
456
made by the respondents to get their matter listed in the
High Court and the only order that the court has made is
that the appeals be added to the cause list of the Division
Bench and it would be anybody’s guess when this last added
matter would reach hearing. Having no alternative left open
to us, we have heard the matter.
As the appeals are pending before the Division Bench of
the Calcutta High Court and are to be heard on merits, we
would make every manageable human effort to avoid any
expression of opinion which may even remotely interfere with
judicious adjudication of the issues before the Division
Bench. However, we make it clear that even if there is any
express or implied opinion discernible in this order, the
same has to be wholly ignored by the High Court while
disposing of the appeals on merits. With this extra caution
we proceed to dispose of these appeals. As every stage of
the proceeding has been neatly delineated by us with the
orders of the Court referred to in details, the permissible
inferences may alone be set out.
What is the injudicious situation which may bring
disrepute to judicial process, stares in the face. The
consent decree under which appellant was entitled to recover
Rs. 2,85,000 with interest, at the rate of 6% per annum from
the date of the decree till realisation was made by the
Court on January 6, 1970. The decree without being satisfied
in its minutest part has collected dust for 11 years. And at
present who is impeding the execution of the decree ? It is
the 1st respondent company which has been a party to the
consent decree and which decree has become final and
unassailable. There is no proceeding at precent questioning
the correctness, validity or legality of the decree or its
binding character on the 1st respondent company.
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It is again incontrovertible that the judgment-debtor
Ist respondent company has in its fixed deposit with the 4th
respondent Bank a sum of Rs. 8,40,000. That his amount is of
the ownership of the judgment-debtor is not in dispute. 3rd
respondent S.K. Dutta was once a receiver. Respondents say
that he has been removed and respondents 5 and 6 who are
respectively the Advocates of the Ist respondent company and
the 2nd respondent State of West Bengal claim to be
appointed as joint receivers. The date of appointment is not
made clear but the order dated March 7, 1980 (Annexure ’J’)
by Mrs. Padma Khastgir, J. leaves no room for doubt that
till that date 3rd respondent S.K. Dutta was not discharged
as receiver.
457
The High Court on a petition of the appellant levied
attachment under order 21 Rule 52 C.P.C. On the amount Lying
in fixed deposit account with 4th respondent Bank in the
name of 3rd respondent S.K.Dutta as receiver of the first
respondent company by order dated April 5, 1978. This
attachment order was levied by the Master of the Court and
the interim attachment was confirmed. Admittedly these
orders were not challenged.
Sabyasachi Mukerjee, J. by his order dated May 4, 1978,
directed 3rd respondent S.K. Dutta to pay the amount of Rs.
4,20,702.94 P. Out of the amount Lying in fixed deposit
receipt No. 1002-2539 with the fourth respondent Bank to the
appellant in satisfaction of the decree. This order may
appear to have become final as not having been questioned by
any one. Manoj Kumar Mukherjee, J. by his order dated May
24, 1979, directed 3rd respondent S.K.Dutta, receiver of the
Ist respondent company to pay Rs. 4,20,702.94 p. Out of the
fixed deposit account held by him as receiver of the Ist
respondent company to the appellant and a consequential
order was made directing the Bank to pay the amount set out
in the order to the appellant. This order dated May 24,
1979, may appear to have become final as it appears not to
have been questioned, challenged or appealed by any one.
Failure to comply with the court’s mandatory direction
led the appellant to file a petition for contempt. The
alleged contemners impleaded were Ist respondent company and
the 4th respondent Bank. When this petition for taking
action in contempt came up before Manoj Kumar Mukherjee, J.
there appeared on the scene one Mr. Majumdar, learned
counsel for the 4th respondent Bank as well as the two joint
receivers functioning in dual capacity as joint of receivers
as well as learned counsel for the respective clients,
namely, Ist respondent company and the 2nd respondent State
of West Bengal. At the hearing of this motion for taking
action for contempt, Mr. Majumdar learned counsel for the
4th respondent unreservedly agreed to comply with the order
of the Court on May 24, 1979, which means that he agreed and
undertook to pay the amount of Rs. 4,20,702.94 out of the
fixed deposit account in the name of 3rd respondent S.K.
Dutta, receiver of the Ist respondent company. It is because
the Bank agreed unreservedly and unconditionally to pay up
the amount that the motion for taking action in contempt was
discharged by the Court. No action was sought to be taken
against the joint receivers who had interposed themselves in
the meantime. Therefore, the court declined to accede to
their request to stay a
458
portion of the order. The order dated June 7, 1979, is not a
fresh order on merits. It was merely an implementation of
the order dated May 24, 1979, which may appear to have
become final and binding. Yet the 1st respondent company and
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the 2nd respondent State of West Bengal took no further
action and surprisingly the Bank also joined hands with them
by not paying the amount till March 7, 1980. Maybe, there
may be some interim orders. We are not made knowledgeable
about the nature and character of those interim orders save
and except what has been recited in the order dated March 7,
1980, of Mrs. Padma Khastgir, J. However, there seems to be
some apparent collusion between the company on one hand and
the joint receivers in not complying with the court’s order
dated May 24, 1979, even though action for contempt was
avoided by giving an unconditional undertaking to carry out
that order.
The three appeals were preferred against the order
dated March 7, 1980. That order has nothing to do with order
dated May 24, 1979, or the order dated June 7, 1979. At any
rate, the order dated May 24, 1979, may appear to have
become final.
Would it be appropriate in such circumstances to grant
an interim stay of the portion of an order which may appear
to have become final in an appeal against an altogether
different order?
Mr. Shankar Ghose, learned counsel for the respondent
wanted us to take note of various allegations against the
3rd respondent, the receiver, the fact that he was removed,
the fact that he was colluding with the appellant and that
he was negligent as also that he was discharged at some
stage of the proceedings. At this stage, these contentions
in our opinion are not very relevant. Maybe, there is merit
in these contentions. Maybe, the Division Bench hearing the
appeals by the Ist and 2nd respondent will examine these
contentions on merits. The only live issue is whether would
it be fair while granting stay of the order dated March 7,
1980 to effectively stay the order dated March 24,1979,
which appears not to be under appeal though its validity may
be questioned in the course of hearing of the appeal? If
that be so, could the Court overlook attempt of the Ist and
2nd respondents to circumvent the order by obtaining an
interim stay in such manner that an order not under appeal
gets frozen ’? It is, therefore, that we propose to
interfere with the interim order made by the Division Bench
of the Calcutta High Court on September 9, 1980, confirming
the ad interim order dated March 7, 1980, to a limited
extent so that an impression that the court’s process can be
lightly trifled with, may be avoided.
459
Under the circumstances the proper thing to do would be
to set aside the interim stay order dated March 27, 1980, as
also the order dated September 9, 1980, confirming the
interim order but in order to ensure the resultant justice
as we are interfering with an interim order, we consider it
proper to give certain directions, while restoring status
quo ante in the event the appeals filed by respondents 1 and
2 are allowed or any specific positive direction is given by
the court in this behalf. We accordingly allow these appeals
and set aside the orders made by the Division Bench on March
27, 1980 and September 9, 1980. The result would be that the
order dated May 4, 1978, by Sabyasachi Mukherjee, J. and
order dated May 24, 1978, made by Manoj Kumar Mukherjee, J.
as also the undertaking given by the manager of the 4th
respondent Bank through his learned counsel Shri Majumdar
before Manoj Kumar Mukherjee, J. On June 7, 1979, would be
revived and would be effective and will have to be
implemented. In pursuance to the aforementioned two orders,
the 4th respondent Bank will have to pay Rs. 4,20,702.94 p.
to the decree-holder appellant towards the decretal amount.
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On receipt of the amount the appellant shall pass a receipt
acknowledging receipt of the amount and to the extent of the
payment of the amount herein indicated the liability of the
4th respondent Bank to the Ist respondent company or anyone
claiming on its behalf or the 3rd respondent receiver shall
stand discharged. Before the amount is paid, the appellant
shall give security to the satisfaction of the High Court
and also an undertaking on affidavit to the Division Bench
of the Calcutta High Court before which the appeals
preferred by the Ist and 2nd respondents are pending that in
the event the appeals are allowed which makes it
consequently necessary for the appellant to repay the amount
received from the 4th respondent Bank in payment of the
decretal amount, the appellant shall deposit the said amount
with the Calcutta High Court within one month from the date
of the order of the appellate Bench.
The appeals will stand disposed of as herein indicated
with no order as to cost.
N.V.K. Appeals allowed.
460