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PETITIONER: KANHAIYALAL

       Vs.

RESPONDENT: Dr. D. R. BANAJI AND OTHERS

DATE OF JUDGMENT: 31/03/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER SUBBARAO, K.

CITATION:  1958 AIR  725            1959 SCR  333

ACT:        Revenue  Sale--Property in Possession of Receiver  appointed        by  Court-Absence  of  leave of  Court  for  sale-Notice  to        Receiver  not given--Whether sale illegal---Whether suit  to        set  aside  sale by civil court  barred-Berar  Land  Revenue        Code, 1928, ss. 155, 156, 157, 192.

HEADNOTE: The appellant was the auction-purchaser of the property at a revenue  sale  held under the provisions of the  Berar  Land Revenue  Code, 1928, for recovery of land revenue due.   The property  at the time of the attachment and sale was in  the possession of a Receiver appointed under Or. 40, R. i of the Code of Civil Procedure by the Bombay High Court.  Notice to the  Receiver, however, was not given of the attachment  and sale  of the property, nor was any leave of the Court  taken for  the sale.  In a suit instituted by the Receiver  for  a declaration that the sale was a nullity or, at any rate, was illegal  and liable to be set aside,  the  auction-purchaser contended that the sale without notice to 334 the Receiver or without impleading him was not void but only voidable and that, in any event, the suit was barred by  the provisions  of  ss.  I57 and 192 of the Berar  Land  Revenue Code, 1928: Held,  (i) that the sale was illegal in the absence  of  the leave of the Court and the necessary notice to the Receiver; (2)  that  the suit was not barred by any of the  provisions of the Code. Sub-section  (1)  of  s.  I57 of the  Code  which  bars  the institution  of a suit to set aside a sale is confined  only to  claims  on  the ground of  irregularity  or  mistake  in publishing  or conducting the sale as referred to in s.  56, and  suits based on other grounds, including those  referred to  in sub-s. (2) Of S. 157, are not within the  prohibition of sub-s. (1). Section 192 of the Code is not applicable as the suit is not one  simpliciter to set aside the sale held by  the  revenue authorities,  but  one for a declaration  and  consequential relief  on the grounds taken by the Receiver not covered  by the  specific provisions of the Code for setting  aside  the

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sale which the several authorities under the Code have  been empowered  to  determine, decide or dispose  of  within  the meaning of s. 192(I).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 128 of 1954. Appeal from the judgment and decree dated January 25,  1951, of  the  Nagpur High Court in L. P. Appeal No. 10  of  1945, arising out of the judgment and decree dated March 29, 1945, of  the  said High Court in Second Appeal No. 453  of  1941, against  judgment  and decree dated April 5,  1941,  of  the Addl.   District Judge, Yeotmal in Civil Appeal No. 47-A  of 1940 arising out of the judgment and decree dated  September 14,  1940, of the Addl.  Sub-Judge, First Class, Yeotmal  in Civil Suit No. 72-A of 1940. Radhey Lal, for the appellant. P.   N.  Bhagwati,  J.  B.  Dadachanji,  S.  N.  Andley  and Rameshwar Nath, for respondent No. 1. R. H. Dhebar, for respondent No. 2. 1958.   March 31.  The following Judgment of the  Court  was delivered by SINHA J.-The main question in controversy in this appeal  on a  certificate  of  fitness granted by  the  High  Court  of Judicature at Nagpur (as it then was), is 335 whether the provisions of the Berar Land Revenue Code,  1928 (which will hereinafter be referred to as the Code), bar the suit out of which this appeal arises. In  order  to appreciate the points in controversy  in  this appeal,  it is necessary to state the following  facts:  One Bhagchand Jairamdas was the occupant of a plot, situated  in the  District  town of Yeotmal in what was then  called  the Province of Central Provinces and Berar, measuring  1,91,664 square  feet in area, on which stood a ginning  factory  and its appurtenant buildings.  Bhagchand aforesaid had executed a  mortgage-bond in favour of one Abubakar.   The  mortgagee aforesaid  instituted  a suit on the original  side  of  the Bombay  High  Court, being Civil Suit No. 1543 of  1934,  to enforce  the  said mortgage.  A Receiver  was  appointed  on October 20, 1936, during the pendency of the suit in respect of  the  mortgaged properties including the  plot  described above.   The  land and the buildings and the  factory,  have been  valued by the courts below at about Rs.  70,000.   The revenue  payable in respect of the plot in question, at  the rate  of  Rs.  129 per year, appears  to  have  remained  in arrears  for  two years, namely, 1936-37 and  1937-38.   The Sub-Divisional Officer of Yeotmal, functioning as the Deputy Commissioner  under  the Code, sold at auction the  plot  in question,  free of all encumbrances, on December  17,  1937, without impleading or giving notice to the Receiver who  was in-charge  of  the estate of Bhagechand, as  aforesaid.   At that  auction,  Kanhaiyalal, the  appellant,  purchased  the property  for  Rs.  270 only.  The sale in  his  favour  was confirmed on January 26, 1938, bit, it appears that the then Receiver had sent Rs. 275 by a cheque to the  Sub-Divisional Officer  concerned, in full payment of the arrears  of  land revenue,  and thus, to have the sale set aside.  But it  was received  two  days  after the  confirmation  of  the  sale. -Before the confirmation of the sale, the Receiver had  made an  application on Januaryt 19, 1938, to the  Sub-Divisional Officer,  offering to pay the arrears, but it  appears  that through  some bungling in the office, the attention  of  the Sub-Divisional  Officer  was not drawn  to  the  application

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until after the 336 confirmation of the sale.  The Receiver then applied for  a, review  of  the  order confirming the  sale,  and  the  Sub- Divisional Officer allowed the application and set aside the sale.    The   Deputy   Commissioner,   Yeotmal,   and   the Commissioner, Berar, also upheld the order setting aside the sale.  Thereupon, the auction-purchaser, Kanhaiyalal,  moved in  revision  the Financial Commissioner who  was  then  the highest Revenue authority under the Code, against the  order of the Commissioner, and ultimately, the order setting aside the  sale, was vacated by the Financial Commissioner on  the ground  that there was no application under s.155 or s.  156 of the Code. The  then Receiver, having ultimately failed in  having  the sale of the valuable properties by the revenue  authorities, set  aside,  instituted the suit out of  which  this  appeal arises,  impleading  the Provincial  Government  of  Central Provinces  and Berar, as the first  defendant,  Kanhaiyalal, the   auction-purchaser,  as  the  second   defendant,   and Dulichand Bhagchand as the third defendant.  He prayed for a declaration that the auction-sale held on December 17, 1937, was void, on a number of grounds including the grounds  that no  notice of demand had been sent to the Receiver  who  was in-charge  of  the property; that the  attachment  and  sale proclamation  had  not been effected according to  law,  and that  though  the  revenue authorities  were  aware  of  the appointment  of  a Receiver of the property, by  the  Bombay High  Court, they did not implead the Court Receiver.   This suit  was  contested on the preliminary ground that  it  was barred 157 and 192 of the Code.  That  with the trial  court and  the  onal  District  Judge,  Yeotmal).  High  Court  of Judicature at Nagpur, the case was heard by a Single  Judge, Nivogi J. who allowed the appeal by judgment dated March 29, 1945.  On a Letters Patent appeal by the  auction-purchaser, Kanhaiyalal,  the  matter  was heard  by  a  Division  Bench (Mangalmurti and Deo JJ.) The Bench affirmed the decision of the learned Single 337 Judge,  and held that the suit was not barred.  Hence,  this appeal. It  was  urged  on behalf of  the  appellant,  the  auction- purchaser, who was the second defendant in the suit, and who only is interested in having the sale in question, sustained by  the Court, that the sale without notice to the  Receiver or without impleading him, was not void but only  irregular, and secondly, that in any event, the suit was barred by  the provisions  of  ss.  157 and 192 of  the  Code.   The  first defendant,  the State Government, which was  represented  by Mr.  Dhebar, prayed that, in any event, there should  be  no order  for  costs  either  in  favour  of  or  against   the Government. On  behalf  of the plaintiff-respondent, it was  urged  that property  in the hands of a Receiver is custodia legis,  and is  exempt from all judicial processes except to the  extent that the Court which has appointed the Receiver, may  accord permission to the Receiver or to third parties to  institute proceedings in respect of the property;, that no  permission of  the Bombay High Court which had appointed the  Receiver, having  been  taken for the sale of the property,  the  sale held  without such a permission, is a nullity; that, at  any rate,  such  a  sale  was not a  mere  irregularity  but  an illegality and could be avoided by suit; that there being no valid  attachment  of  the  property  with  notice  to   the Receiver,  the  attachment itself was illegal, and  on  that

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ground  also, the sale was void; and lastly, that  the  suit was not barred by the provisions of the Code, as held by the High Court. The facts as set out above, are not in controversy.   During the time that the proceedings culminating in the sale of the property,  had  been  pending in  the  Revenue  Courts,  the Receiver  was  in effective control and  management  of  the property.  The revenue authorities had been apprised of  the fact  that the Receiver appointed by the Bombay High  Court, was  in-charge  of the property.  As a matter  of  fact,  an attempt  had  been made by the revenue authorities,  in  the first  instance,  to approach the Collector  of  Bombay  for realising the 43 338 arrears of land revenue in respect of the plot in  question, but the mistake was that no approach was made to the  Bombay High Court or even to the Receiver for paying up the arrears -of  the Government demands.  It was certainly the  duty  of the Receiver to see to it that all public demands in respect of the properties in his charge, were paid in due time,  and in. this case, certainly, the arrears in respect of the year 1937-38,  which  fell due in August, 1938,  accrued  in  his time,  if  not also the arrears in respect of  the  previous year 1936-37.  If the Receiver had been more vigilant, or if the  revenue  authorities  had  made  the  demand  from  the Receiver in respect of the arrears, they may have been  paid up  in  due  course without the  necessity  of  putting  the property to sale. So far as the Indian Courts are concerned, it is settled law that a sale held without making attachment of the  property, or  without  duly complying with the provisions of  the  law relating  to  attachment of property, is not void  but  only voidable.  Rule 52 of 0. 21 of the Code of Civil  Procedure, requires  that where the property is in the custody  of  any court  or  public  officer, attachment shall be  made  by  a notice to such court or officer.  But the absence of such  a notice would not render the sale void ab initio, because the jurisdiction  of  the court or the  authority  ordering  the sale,  does  not  depend upon the issue  of  the  notice  of attachment.   It is also settled law that proceedings  taken in  respect  of a property which is in  the  possession  and management of a Receiver appointed by Court under 0. 40,  r. I of the Code of Civil Procedure, without the leave of  that Court,  are illegal in the sense that the  party  proceeding against  the  property  without  the  leave  of  the   Court concerned,  is  liable to be committed for contempt  of  the Court,  and that the proceedings so held, do not affect  the interest in the hands of the Receiver who holds the property for  the  benefit  of  the party  who,  ultimately,  may  be adjudged  by  the  Court to be entitled to  the  same.   The learned counsel for the respondent was not able to bring  to our notice any ruling of any Court in India, holding that  a sale held without notice to the Receiver or 339 without  the leave of the Court appointing the  Receiver  in respect of the property, is void ab initio.  In the  instant case,  we do not think it necessary to go into the  question raised  by  the learned counsel for the respondents  that  a sale  of  a property in the hands of the Court  through  its Receiver, without the leave of the Court, is a nullity.  The American  Courts appear to have taken the view that  such  a sale  is  void.  In our opinion, it is enough to  point  out that the High Court took the view that the sale was voidable and  could be declared illegal in a proper proceeding or  by

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suit.   We shall assume for the purposes of this  case  that such a sale is only voidable and not void ab initio. On  the assumption that the sale held in this  case  without the  leave of the Court and without notice to the  Receiver, is  only voidable and can be declared illegal on  that  very ground,  the  suit had been instituted for  the  declaration that the sale by the revenue courts was illegal.  The plaint was  subsequently amended by adding the relief for  recovery of  possession,  because  in  the  meanwhile,  the  auction- purchaser  had  obtained  delivery  of  possession  of   the property through the revenue authorities, some time in 1940. The general rule that property in custodia legis through its duly  appointed  Receiver is exempt  from  judicial  process except  to the extent that the leave of that court has  been obtained, is based on a very sound reason of public  policy, namely,  that  there should be no conflict  of  jurisdiction between  different  Courts.  If a court  has  exercised  its power  to appoint a Receiver of a certain property,  it  has done  so  with  a view to preserving the  property  for  the benefit of the rightful owner as judicially determined.   If other  Courts  or  Tribunals  of  co-ordinate  or  exclusive jurisdiction   were   to  permit  proceedings  to   (lo   on independently  of the Court which has placed the custody  of the  property  in  the hands of the Receiver,  there  was  a likelihood of confusion in the administration of justice and a  possible conflict of jurisdiction.  The Courts  represent the  majesty of law, and naturally, therefore, would not  do anything  to  weaken  the  rule of law,  or  to  permit  any proceedings 340 which  may have the effect of putting any party in  jeopardy for  contempt of court for taking recourse  to  unauthorised legal proceedings.  It is on that very sound principle  that the rule is based.  Of course, if any Court which is holding the  property  in  custodia  legis  through  a  Receiver  or otherwise,  is  moved to grant permission for  taking  legal proceedings   in  respect  of  that  property,   the   Court ordinarily would grant such permission if considerations  of justice require it.  Courts of justice, therefore, would not be a party to any interference with that sound rule.  On the other hand, all Courts of justice would be only too  anxious to  see that property in custodia legis is not subjected  to uncontrolled attack, while, at the same time, protecting the rights of’ all persons who may have claims to the property. After making these general observations, we have to  examine the provisions of the Code, to find out how far that general rule of law is affected by those provisions.  The Berar Land Revenue  Code provides that " land revenue assessed oil  any land shall be a first charge on that land and on the  crops, rents and profits thereof " (s. 131).  Section 132 makes the occupant  in  respect of the land in  question  "  primarily liable  for  the payment of the land revenue ", but  s.  133 provides that in case of default of payment of land  revenue by the person who is ’primarily liable’, " the land  revenue including  arrears shall be recoverable from any  person  in possession  of the land." Hence, in this case,  the  revenue authorities could legally call upon the Receiver to pay  the arrears of land revenue, and as pointed out above, it  would have been the duty of the Receiver to pay up those  arrears. Under  s.  135,  the Receiver would be deemed  to  be  a,  I defaulter’  in  respect of the land  revenue.   Section  140 makes  the  statement of account, certified  by  the  Deputy Commissioner  or the Tahsildar, conclusive evidence  of  the existence of the arrears and of the person shown therein  as the defaulter, for the purposes of the Chapter in which  the

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section  finds  a place, namely, Chapter XII, headed  as,  " Realization of Land Revenue ". One of the modes laid down in   341 s.141  (e)  of  the Code for the recovery  of  arrears  land revenue,  is " attachment and sale of the, holding on  which the  arrear is due." If a sale is held under the  provisions of s. 141 (c), s. 149 (2) provides that such a sale "  shall transfer  the holding free of all encur brances  imposed  on it..................... Thus, the appellant, if the sale  in his  favour was a valid on acquired the property said to  be worth  Rs. 70,000, from from all encumbrances including  the mortgage-money  due on the property, and for which the  suit in the Bombay High Court had been instituted, even though he paid Rs. 270 only for it. The  principal  question for determination  in  the  appeal, therefore, is whether, in view of the special provisions  of the Land Revenue Code, the presesuit could be entertained by the civil court.  It beyond question that the Code lays down a special machinery for the realization of Government  reven which  has  been  declared  as  the  paramount  charge   the property.   It  lays  down  a  summary  procedure  for   the realization  of  public  revenue, and  all  question  coming within the purview of the Code, must I determined  according to  the procedure laid down that Code.  Hence, in so far  as the  Code has laid do," specific rules of  procedure,  those rules  and no other must apply in the determination  of  all controversies  coming  strictly  within  the  terms  of  the statute One thing is absolutely clear, namely that the  Code does not lay down any specific rules in respect of pro party which   has  been  placed  in  custodia  legis.   The   Code contemplates  regular payment of Government revenue  by  the owner, possessor or the occupant, the property in respect of which  Government revenue is payable.  It also takes  notice of devolution of interest by transfer or succession, but  it does notice contemplate the inter-position of a Receiver  in respect of the property subject to the payment of Government revenue.   This  aspect  of  the  matter  becomes  important because the only point for determination ’in, the appeal, is whether  the auction-sale held under the Code,  without  the leave  of  the  Court  or without  notice  to  the  Receiver appointed by the Court, should affair 342 Le interest which the Bombay High Court had, by pointing the Receiver,  sought  to protect, if the sale   favour  of  the appellant, stands.  The mortgagee’s security for the payment of the mortgage-debt, in the vent of the auction-sale  being sustained,  is to that -tent adversely affected without  his having any voice the matter.  Perhaps, if the Receiver  were not there, the mortgagee may have been more vigilant and  by have  taken  timely steps to pay the  Government  demand  in respect  of  the  property if only  for  conserving  it  for satisfying  his  own  dues on the  mortgage.   It  has  been strenuously  argued  on  behalf of the  appellant  that  the present  suit cannot be maintained in few of the  provisions of the Code, particularly,  157 and 192 which we now proceed to examine. action 157 is in these terms: "  157.  (1)  If no application under section  156  is  made within  the time allowed therefor, all claims on the  ground of  irregularity or mistake shall be barred. (2) Nothing  in sub-section  (1) shall bar the institution of a suit in  the civil  court to set aside a sale on the ground of  fraud  or oil  the  ground that the arrear for which the  property  is sold   was  not  due."  his  section  makes   reference   to proceedings   under   the  previous.   156.    Section   156 contemplates an application for setting aside the sale "  on

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the  ground  of  some material irregularity  or  mistake  in publishing or conducting it ", at the instance of a person " whose interests are affected by the sale ". Assuming that in the  instant case, the Receiver is a person  whose  interest can be said to have been affected by the sale, the ground on which he could have moved the Revenue athorities for setting aside  the  sale, was limited to  material  irregularity  or mistake in publishing or Inducting the sale.  This provision proceeds  on the assumption that the necessary parties  have been apprised of the proceedings relating to the realization Government  revenue.  It assumes that the  proceedings  have been  properly taken, but there may have been some  material irregularity  or mistake at a later age of the  proceedings, namely,  in publishing or enducting the sale.  It  is  clear that the ground on 343 which the present suit is based, would not be covered by the crucial  words quoted above, on which alone s. 156 could  be availed  of  " Publishing " the sale has reference  to  that part   of  the  proceedings  which  relates  to   the   sale proclamation, and conducting’ the sale has reference to acts or  omissions,  at a still later stage, of some  officer  or public authority who is entrusted with holding the sale.  It is  clear, therefore, that the provisions of s. 156 are  out of  the way of the plaintiff in this suit.  So also are  the provisions  of  s. 155 which relate to  an  application  for setting  aside a sale on deposit of arrears within  30  days from the date of the sale.  An application under s. 155  can only  be  made by a person "either owning such  property  or holding  an interest therein by virtue of a  title  acquired before such sale ". A Receiver appointed under 0. 40 of  the Code  of Civil Procedure, unlike a Receiver appointed  under the  Insolvency Act, does not own the property or  hold  any interest therein by virtue of a title.  He is only the agent of  the  court for the safe custody and  management  of  the property   during   the  time  that  the   court   exercises jurisdiction over the litigation in respect of the property. Section  157(1) of the Code, ’which positively bars a  suit, is in express terms, confined to " all claims oil the ground of  irregularity  or mistake ". It does  not  cover  grounds other  than those-for example, if a sale is attacked on  the ground  that the owner of the property was dead at the  date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out  of’ his  remedy under the Code by some fraudulent act,  or  that there  was really no arrear due in respect of  the  property sold,  or  such allied grounds-suits based on  grounds  like these,  would  not be within the prohibition of  s.  157(1). Section 157(2) specifically saves certain suits of the  kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub-s. (2) of s. 157, are covered by the provisions of the positive bar laid  down by  s.  157(1).   There may be a tertium  quid  between  the grounds  covered  by s. 157(1) and s. 157(2).  It  is  clear that 344 the  present suit is not covered either by the terms  of  s. 157(1)  or  those of s. 157(2).  As already  indicated,  the position emerging in the present controversy, is not covered by the express provisions of s. 157. But it has been argued on behalf of the appellant that  even though  the  provisions of s. 157 do not  cover  the  ground raised in the present suit, s. 192(1) of the Code, bars  the suit.  Section 192(1) is in these terms: "  192. (1) Except as otherwise provided in this Law, or  in

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any  other enactment for the time being in force,  no  civil court  shall  entertain any suit instituted  or  application made to obtain a decision or order on any matter which,  the Provincial  Government or any Revenue Officer . is, by  this Law,  empowered to determine, decide or dispose of;  and  in particular  and without prejudice to the generality of  this provision,  no civil court shall exercise jurisdiction  over any of the following matters:-" It is not necessary to set out the clauses (a) to (p)  under sub-s.  (1)  of s. 192, because none of those  clauses,  has been claimed clearly to cover the present suit. Learned  counsel  for the appellant contended  that  setting aside a sale has been specifically provided for by the Code, which  the  several  authorities under the  Code  have  been empowered  to  determine, decide or dispose of,  within  the meaning  of the section.  There is no doubt that the  matter of  the  setting aside of a sale by payment of  the  arrears under  s. 155, and on the specific grounds under s. 156,  as discussed above, has been provided for in the Code, but,  as already  observed, the suit does not raise any ground  which is  covered  by  the specific provisions  of  the  Code  for setting aside a sale.  Strictly speaking, this is a suit for a declaration that the sale held by the revenue courts, does not  affect  the interests which are in the custody  of  the Court  through its Receiver, and for recovery of  possession as  against  the auction-purchaser who is alleged to  be  in wrongful  possession-of  the  property  which  should   have continued   in  possession  of  the  Receiver,   under   the directions of the Bombay High Court.  In short, this is  not a suit simpliciter to 345 set  aside  the sale held by the revenue authorities  but  a suit for a declaration and a consequential relief A suit for such a declaration on the grounds taken by the Receiver  and for   possession,  is  not  a  matter,  which  the   several authorities   under  the  Code,  have  been   empowered   to determine, decide or dispose of. But the learned counsel for the appellant further  contended that  s. 192 takes in its sweep all the relevant  provisions of the Code bearing on the rights of the Receiver to have  a sale set aside.  Undoubtedly, it is so, but, as pointed  out above,  the  Receiver  could not have  brought  the  present controversy  within the terms of any one of those  sections. In  this  connection,  reliance  was-  also  placed  on  the provisions  of  ss.  32, 38 and 159 of  the  Code.   In  our opinion,  those  sections  have no bearing  on  the  present controversy.   Section 32 deals with appeals  and  appellate authorities, and lays down the hierarchy of officers to deal with  an appeal.  Section 38 prescribes the  authorities  to deal with revisional matters, and s. 159 conserves the power of  the Deputy Commissioner to pass orders suo moto that  is to  say, where no application has been made under s. 155  or s.  156, or even beyond the period of thirty days, which  is the  prescribed period for making applications  under  those sections.   Thus, if the leave of the Bombay High Court  had been  taken to initiate proceedings under the Code, for  the realization  of Government revenue, or if the  Receiver  had been  served with the notice of demand, it would  have  been his  bounden duty to pay up the arrears of land revenue  and to  continue  -paying Government demands in respect  of  the Property  in  his charge, in order to conserve  it  for  the benefit  of the parties which were before the Court  in  the mortgage  suit.  If such a step had been taken, and  if  the Receiver,  in spite of notice, had allowed the  auction-sale to  be held for non-payment of Government demands, the  sale

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would  have been valid and subject only to such  proceedings as  are contemplated under ss. 155 and 156 of the Code.   In that   case,   there  would  have  been   no   conflict   of jurisdiction, and therefore, no question 44 346 of infringing the sound principle discussed above.  But  the absence  of  the  leave of the Court and  of  the  necessary notice  to the Receiver, makes all the difference between  a valid  and an illegal sale.  The High Court has also  relied upon  the  well-known rule of natural  justice-audi  alteram partem-as another reason for holding the sale to be illegal. It  is  not  necessary  for the purposes  of  this  case  to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute. For the reasons given above, we agree with the High Court in its conclusion that the auction-sale impugned in this  case, was  illegal,  and  that  the suit was  not  barred  by  the provisions  of  the  Code.   The  appeal  is,   accordingly, dismissed with costs to the Receiver who alone has contested the appeal.                             Appeal dismissed.