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PETITIONER: MYURDHWAJ COOPERATIVE GROUP, HOUSING SOCIETY LTD.

       Vs.

RESPONDENT: THE PRESIDING OFFICER, DELHI COOPERATIVE TRIBUNAL & ORS.

DATE OF JUDGMENT:       14/07/1998

BENCH: G.B. PATTANAIK, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Misra, J.      The short  question raised  in this appeal is, "whether in the  allotment of flats to its members by the Cooperative Housing Society  (hereinafter referred  to as ’the society’) the criteria  is seniority  irrespective of  default in  the payment of  dues or  whether it  is payment- cum seniority?" The appellant  is a  registered Housing Cooperative Society, registered  in   the  Office   of   Registrar,   Cooperative Societies, Delhi, under the Delhi Cooperative Societies Act, 1972 (hereinafter  referred to  as "the  Act") and the Delhi Cooperative Societies Rules 1973 (hereinafter referred to as "the  Rules").   It  was  constituted  for  the  purpose  of allotment of  flats to its members. At the relevant time 460 members were  in roll. This society applied for allotment of land  to   the  Delhi   Development  Authority  (hereinafter referred to  as "DDA")  for the  purpose of  construction of flats for  its members.  This Society  was allotted  only  5 acres of land in Patparganj which was not sufficient for the construction of  flats for  the aforesaid  members. However, later on,  in view  of relaxation  to the  ceiling limit DDA decided  to   make  additional   allotment  as   per  actual requirement, that is to say, to the extent of 7.666 acres of land instead  of 5  acres. The  society was also directed to deposit a  sum of  Rs. 11,  87, 190.80p. towards the cost of additional land.  In 1988, the Society raised demand for the construction of first phase of flats on the said 5 acres and also sent  remainder  notice  to  all  its  members  through registered post  including the  main  contesting  Respondent No.3 Mrs.  Veena Kumar  vide notice  dated 26th April, 1989( the receipt  of the notice was denied by Respondent No.3) As per the said notice the cost of construction of flat of each of its  member was  said to be Rs. 2,75,213/- approximately. The mode  of payment  as per  the first  notice was,  to pay initially Rs.  2,21,705/- by each of such allottee but since only Rs.  85,100/- was  paid  hence  through  the  aforesaid notice it  was directed  to pay  the balance  amount of  Rs. 1,36,705/- within  thirty days.  Further it  resolved  those defaulting shall  be expelled  from the  Society. A  general body meeting  was convened  by the  Society on  6th January,

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1990. In  this meeting  the general body took a softer view, inspite of  the  said  notice  dated  6th  April,  1989.  It resolved, all  its members  who  were  allotted  HIG(L)  and HIG(S) category and had paid Rs. Two laks and Rs. 1,75,000/- respectively, their  allotments have provisionally confirmed and all  those members who have been provisionally confirmed and all  those members  who have  paid  the  minimum  credit balance of  Rs. 1,32,221.50p.  were accommodated at Plot No. 60,  Patparganj,   Delhi   Subject   to   their   qualifying requirement for being a member in the society and subject to their making  payment of  the balance  amount, but those who failed  to   pay  even   Rs.  1,32,221.50p.  would  only  be accommodated  on   the  flats   to  be  constructed  on  the additional land which were to come in phase II construction. Phase I construction is on the said 5 acres of land.      Respondent No.  3 filed  a claim petition under Section b60 of  the Act on the ground that the decision taken by the General Body on the 6th January, 1990 was illegal, malafide, discriminiatory and  without jurisdiction.  The  matter  was referred to  the Arbitrator under Section 61 of the Act. The Arbitrator gave the award in favour of the appellant-Society on the basis of a decision in Civil Writ Petition No. 955 of 1989 titled A.V. Ashokan & Others Vs. Registrar, Cooperative Societies and  Others decided on 30th April, 1992. On appeal filled by  Respondent No.  3 under Section 76 of the Act the Appellate Authority  (Respondent No.1)  set aside  the  said award by its order dated 299.92. It held that in a matter of allotment of  flats in  a Cooperative Society, seniority has to be the prime criteria notwithstanding the default made by a particular  member. It  also recorded  so far  as lapse of payment, it could be dealt with under separate provisions by charging interest  including penal  interest  or  by  taking steps for expulsion of concerned member.      After coming to know of this order, the appellant filed review, which  was dismissed. Thereafter the appellant filed a Writ  petition which was also dismissed by the High Court. The main  contention raised  now by  the appellant which was also raised before the High Court, viz., the Respondent No.1 wrongly held  principle of seniority as the only criteria in the matter  of allotment.  It  is  urged,  in  view  of  the decision taken by the High Court in the case of A.V. Ashokan (Supra) and  in Civil  Writ Petition No. 1484 of 1991 titled S.C. Verma  Vs. Lawyers  Cooperative Group  Housing  Society Limited, dated  22.8.91, the  decision of  the  Tribunal  is liable to  be set  aside.  These  decisions  hold  that  the allotment of  flats should be on the principle of a payment- cum-seniority. The  submission of  the  appellant  is,  High Court did  not appreciate  these decisions,  hence committed grave illegality  in dismissing  the writ petition. The Case of A.V.  Ashokan (supra)  pertains to the allotment of flats by Saraswati Kunj Cooperative Society Ltd. with reference to category ’C’  flats at  Patparganj could not be accommodated hence they  were shifted to another land where further flats were being constructed. The Court recorded:      " While some members contended that      the   list   should   be   prepared      according to the date of enrollment      as a  member, others submitted that      the   list   should   be   prepared      according to the date of payment of      the amounts  due. We  may also note      that the  General Body  had,  in  a      meeting  in  March,  1987,  decided      that a  list should  be prepared of      those  members  who  had  paid  Rs.

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    1,50,000/- by  15th December,  1986      and thereafter  the list  should be      prepared according  to the  date of      payment........ It  is not possible      to  ignore   seniority  of  members      while. at the, same time, we cannot      ignore the  fact that  some members      may have  paid the  amounts claimed      from them while more senior members      may  not   have  met   the  payment      schedule and they cannot take undue      advantage of other members who have      paid full  amount....... Therefore,      if, after  considerable difficulty,      payments  have  been  made  by  the      members  it   will  be   unfair  to      disregard  the   dates  of  payment      completely.   In    our    opinion,      therefore,  the   most   fair   and      equitable method  of drawing up the      list  of   eligible   members   for      allotment of  remaining 38 flats of      category C  could be to draw up the      list  according   to  the  date  of      payment of  the full  call money by      the members concerned... "      Thereafter an application was made for clarification of this order which is reported in 1992 Vol. 47 Delhi Law Times page 92 in which B.N. Kirpal, J. as he then was, held:      " We find that persons who paid the      full amount  after  15th  December,      1986  really   fall  in   a  single      category and it will not be fair to      treat them separately. Furthermore,      we find  that some  regard has also      to be given to the seniority of the      members.... In  drawing up the list      of members  who  made  the  payment      after 15th  December, 1986  we find      that most  of the  money  has  been      paid by the members within a period      of  two  or  three  months.  Merely      because persons  who is  at  serial      No. 1,  for example  has paid money      one week  after a person who became      a  member   many  years  thereafter      should not  be a  reason for giving      higher weightage  to  the  date  of      payment. All members who paid money      after  15th   December,  1986   are      defaulters. Therefore,  the list of      defaulters  can   be  prepared   on      either  of   the  two   basis   (1)      according to  the overall seniority      (2) according  (2) according to the      date of the payment.... "      In the case of S.C. Verma (supra), it was a case of the Lawyers Cooperative  Group Housing  society Limited. In this case also,  the dispute  pertained to the allotment of flats in category ’C’. Here again was the same problem, the number of applicants  were larger  than the  number of  flats to be allotted .  In this  case also  cut off date to make payment was fixed as 15th May, 1987. All members who paid the entire due as  on this  date, were  to be included in the list. The amount required  to be paid by this date was Rs. 1,11.000/-.

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26 members  paid this  amount by this date. Here also number of flats were 30 for its 65 members. It was held:      " ... The society had to lay down a      reasonable criteria  for finalising      the list  of members.  The criteria      which the  society adopted was that      all payments  having been  made  in      accordance with  the  demand  which      has been  raised and by keeping the      options  and   the  seniority  into      consideration,   the    list    was      prepared as  on the cut-off date of      15th May,  1987. We cannot find any      infirmity  in   the  principle   so      adopted. It  is essential  for  the      Cooperative Society to decide as to      what  is  the  principle  which  it      should  follow  in  determining  or      finalising the  list of the members      to whom  flats are  to be allotted.      Unless  and  until  the  principles      laid down  by the society are found      to be  arbitrary or  irrational  or      unfair,   the    Court   will   not      interfere with  the same. We do not      find  any  such  infirmity  in  the      procedure which has been adopted or      established viz.  to prepare a list      of members as on 15th May, 1987 who      had not committed any default... "      In this  case the payment of the demand was regarded as an essential  criteria for  preparing the  list of  members. However, the said case also held:      "..  Therefore, where the number of      defaults committed  being equal  it      is   the   seniority   which   must      prevail.... " Hence seniority  was also  given  place  in  the  matter  of consideration for allotment.      Learned senior  Counsel Mr.  K.T.S. Tulsi appearing for the appellant submitted that the High Court did not properly apply its  mind to  the aforesaid  decisions  when  it  held contrary to  the said decisions that it did not lay down any proposition as submitted by the appellant. It is urged, High Court  relied  upon  few  lines  from  paragraph  2  of  the aforesaid clarificatory  judgment in  A.V.  Ashokan  (supra) without reference to the succeeding lines hence wrongly held that it supported the view taken by the Cooperative Tribunal (Respondent No.1).  The submission  made is,  in  this  very paragraph, the Court categorised and graded how allotment is to be  made, which  is not  purely in terms of seniority but payment-cum-seniority with  due weightage  of seniority.  it clearly held  that list  of defaulters  can be  prepared  on either of  the  two  basis  (1)  according  to  the  overall seniority; ()  according to  the date  of payment.  In other words, it  is left  on the discretion of a Society depending on the facts and circumstances of each case.      On the  other hand learned senior Counsel appearing for respondent No.   Mr.  Ashok Kumar  Srivastava  supported  by interveners’ counsel  submitted that  there is  no provision except Rule 36 under which the society could have dealt with the present  case and  under this  when a member defaults he could only  be expelled  following the  procedure laid  down therein. Thus  the general  body resolution, directing those who were  defaulters to  be  accommodated  in  phase  II  is

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illegal as  it is  based on  no sanction conferred under the rules. In  other words, Society is left with no other option but to  expel such a member. However, where Society wants to confer benefit  to its  members the  only criteria  which it could adopt it to allot the accommodation according to their seniority, irrespective  of their  default. On  facts, it is submitted that  Respondent No.3 initially deposited a sum of Rs. 85,000  /-, thereafter  sent a  sum of  Rs. 1,  83,000/- through cheque  dated 8th  November, 1990  making the  total contribution to  Rs. 2,68,000/- and gave an undertaking that she  would  pay  all  the  reasonable  amounts  towards  the interest for the defaulted period, if any. According to her, she came  to know  only on  3rd November,  1990 that she has been relegated  from first  phase to  second  phase  by  the General Body. She claims, she is one of the original members of the society and sent a letter dated 8th November, 1990 to the Society  requesting for the restoration of her status as member of  the first  phase. However,  the  Society  through reply dated  19.11.90 returned  the said cheque and informed that through a registered notice dated 26.4.89, a demand was sent earlier  for the  payment of  Rs. 1,36, 705/- and since the said  amount was  not paid  till 6.1.90  thus as per the said resolution  of the  General Body,  she was relegated to the second  phase. The learned counsel for the respondent on the other  hand further submits that neither additional land has  been   allotted  nor  there  is  any  second  phase  of construction.  To  this,  learned  senior  counsel  for  the appellant, Mr. Tulsi submits, Society has already made total payment for the additional land for the second phase and the possession of  this additional land allotted is likely to be delivered shortly.      Returning to Rule 36, submission for the respondent is, when a  statute provides  a thing  to be done in a manner it has to  be done  in that  manner alone  and not in any other manner. Other  modes  are  excluded.  The  Counsel  for  the respondent referred  the cases  in A.  K. Roy and Others Vs. State of  Punjab (1986  (4) Scc 326 prs. 10-11) and State of Mizoram Vs.  Baikchawane (1995  (2) SCC  156 prs. 7, 8 & 9). This proposition  has not  been disputed  by learned counsel for the  appellant. The  question is,  when a  member is  in default then  is it  that power  of a Society is concretised within this  Rule to  expel such defaulting member or can it within its  peripheral jurisdiction resolve to take recourse to any  other policy  decision, to  enable  such  defaulting member to  deposit the  balance amount  either by  extending time or  giving any such incentive as it deem fit and proper or to  take recourse  to such  consequential measures  as it deem fit  and proper.,  The present  case is  similar to the cases which  arose in the Delhi High Court. The question, is in the  matter of  allotment of flats, can a Society not lay down its  own policy  as to  how instalments are to be paid, within what  time and  in doing  so can it not place certain conditions under  it? In  other words,  can or  can  it  not resolve that  members must  pay  the  stipulated  amount  by fixing any  cut off date. If in spited of that if any member defaults can  it not cancel the allotment. Similarly, can it not decide  instead of  cancelling the allotment to give him an offer  to get  the flat  in the  next phased construction clearing ways for non-defaulters. The question is, can it be said, Society  have no  option except  to allot  strictly by seniority rule in spite of such members defaulting in making the payment  If power  could be  said to  be limited then it means let  seniors default  let  juniors  wait  as  long  as seniors do  not pay  but in  no case  cancel or  even modify preferences in  their allotment.  In our considered opinion,

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such an  interpretation would  be squeezing the power of the general body  of a  Society within  the limits  of  Rule  36 belying all the objectives of the cooperative spirits of the Act. Thus  by this,  if this  be so,  either bear  with  the defaults of  such members   at  the cost  of  non-defaulting members   or   expel   them   from   membership.   Such   an interpretation would  be too harsh even on senior members if only recourse  could be  the later. Even a senior member may have financial  stresses resulting  into default of not able to pay  for a  flat even the minimum fixed amount within the stipulated time,  then will  it be  fair to  expel him?  The option has  to left  with the society to deal with different situations as  may arise from time to time. Taking away this discretion and  binding it  to exercise powers under Rule 36 would be interpreting against the very objective of the Act, leaving  no   option  with   the  Cooperative  Society.  The Cooperative Society  is formed  with laudable  objective  to inculcate spirit  to work  in a  group freely  for rendering benefit   to    its   members    through   the   cooperative contributions. This  is only  possible  by  conferring  wide range of  discretion  to  a  society,  not  restricting  its discretions by  interpreting a law otherwise. This has to be for furthering  the cause  of cooperative  movement. That is why various  rigours of  laws including  taxes and  fees are diluted  for   enhancing  the   spirit  of  the  cooperative movement. We  have no  hesitation  to  hold,  the  power  of Society cannot  be circumvented  within Rule 36 in a case of default  by   its  member  of  any  of  his  dues.  Such  an interpretation  would   be   contradictory   to   the   very cooperative  spirit   or  objectives   of  the  creation  of Cooperative Societies. rule 36 is quoted hereunder:      " 36.  Procedure for  Expulsion  of      Members.      (1)    Notwithstanding     anything      contained  in   the  bye-laws,  any      member who  has  been  persistently      defaulting in  payment of  his dues      or the  payment of claims made by a      housing society  for raising  funds      to fulfil  its  objects,  has  been      failing   to    comply   with   the      provisions    of    the    bye-laws      regarding  sales   of  his  produce      through  the   society  or,   other      matter  in   connection  with   his      dealings with  the society  or who,      in the  opinion of  the  committee,      has  brought   disrepute   to   the      society or  he has  done other acts      detrimental  to   the  interest  or      proper working  of the Society, the      society may, by a resolution passed      by a  majority  of  not  less  than      three-fourth   of    the    members      entitled to vote who are present at      a general  meeting,  held  for  the      purpose, expel  a member  from  the      society.           Provided  that  no  resolution      shall be  valid, unless  the member      concerned   has   been   given   an      opportunity  of   representing  his      case to  the  general  body  an  no      resolution  shall   be   effective,      unless  it   is  approved   by  the

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    Registrar.      (2)   Where   any   member   of   a      cooperative  society   proposes  to      bring a resolution for expulsion of      any other  member, he  shall give a      written  notice   thereof  to   the      president  of   the   Society.   On      receipt of  such notice or when the      committee itself  decides to  bring      in     such     resolution,     the      consideration  of  such  resolution      shall be included in the agenda for      the  next  general  meeting  and  a      notice thereof  shall be  given  to      the  member   against   whom   such      resolution  is   proposed   to   be      brought  calling  upon  him  to  be      present at  the general meeting, to      be held  not earlier  then a period      of one  month from the date of such      notice and  to show  cause  against      expulsion to  the general  body  of      members. After  hearing the member,      if present,  or after  taking  into      consideration      any      written      representation which  he might have      sent,  the   general   body   shall      proceed to consider the resolution.      (3) When  a  resolution  passed  in      accordance with sub-rule (1) or (2)      is  sent   to  the   Registrar   or      otherwise brought  to  his  notice,      the  Registrar   may  consider  the      resolution and  after  making  such      enquiry  as  to  whether  full  and      final opportunity  has  been  given      under sub-rule  (1) or (2) give his      approval and  communicate the  same      to  the   society  and  the  member      concerned  within  a  period  of  6      months.  The  resolution  shall  be      effective   from    the   date   of      approval.      (3) Expulsion  from membership  may      involve forfeiture  of shares  held      by the  member. The  share shall be      forfeited with the prior permission      of the  Registrar. In  that  event,      the value  of the  share  forfeited      shall be  credited to  the  reserve      fund of the society.      (5)  No  member  of  a  cooperative      society who has been expelled under      the foregoing  sub-rules  shall  be      eligible  for   re-admission  as  a      member  of   that  society  or  for      admission as  a member of any other      society  or   for  admission  as  a      member of  any other society of the      same class  for   a period of three      years  from   the  date   of   such      expulsion:           Provided  that  the  Registrar      may, on  an application  either  by      the society  or the member expelled

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    and   in   special   circumstances,      sanction   the    re-admission   or      admission, within  the said period,      of any  such member  as a member of      the said  society or  of any  other      society of  the same  class, as the      case may  be.  Before  giving  such      sanction   for    re-admission   or      admission  by   the  Registrar,  an      opportunity of hearing may be given      to  both  the  society  and  member      concerned."      This Rule deals with the procedure for the expulsion of members. In  case Society decides to expel its member who is persistently defaulting  in making  the payment  of his dues the procedure  to be followed could only be what is provided under this rule and no other. The principle referred earlier that if  a thing  is required  to be  done in  a  manner  as provided under  the law  has to be done in that manner alone and no  other manner  will apply with equal force under rule 36, when  a society  decides to expel its member. In case of expulsion of  procedure provided  under it and the expulsion has to  be only under the mode provided therein and no other which is  mandatory  in  nature.  But  this  is  only  after decision is  made to  expel its  member. This  rule does not take away discretion of the Society to expel a member or not which is  preceding the exercise of power under Rule 36. For this  there   is  nothing   under  this  Rule  which  either circumscribes or  webs this  discretion. Since  this Rule is for the  expulsion of  its members,  it is  stringent in its application. Even  after giving  opportunity and  even after general body  passes such a resolution, it requires approval of the  Registrar. Outside  this,  there  is  nothing  which restricts a  Society to  act freely  and to lay down its own policies. It  is always  open to  it to  decide on a fact to expel him or not. Its discretion to act is curtailed only by a statutory  provision or  any order  having force of law. A policy may depend on various factors, its planning, projects undertaking  including   its  financial  capacity  etc.  One Society may  be in  a sound  position and  other in  limping position thus  may give  to  its  member  larger  or  lesser benefits as  the case  may be.  Thus it  is always open to a Society to  lay down  its  own  principle  for  making  such allotments. So  consideration of  prompt payment  in shaping its policy  which helps it to complete its project to confer to its  member its  fruits at  the earliest may be justified exercise of  its discretion.  To what  extent a  default  is going  to   effect  a  Society  will  depend  on  facts  and circumstances of  each case  which has  to be  left  at  the discretion of  each Society.  It is  not proper even for the courts to  interfere with  such a discretion, except when it is arbitrary,  irrational, mala  fide, against any statutory provisions or  against orders having force of law. This will not  be   possible  if  strict  principle  of  seniority  is followed. However it is open for a Society to give weightage to  seniority  depending  on  facts  of  each  case.  Within permissible limits  it  is  always  open  to  lay  down  its principle which  is just,  fair and  proper. When  a Society could decide the manner of allotment by instalments or other modes, there  is no  inhibition to  it to  modify it in case conditions are  not complied  by its  members Thus it is not possible to uphold that Society has no option but to proceed under Rule  36 to expel its member. Hence once a society has a discretion,  it cannot  be said its power is restricted to allot only under strict rule of seniority.

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    We find  Section 28 of the Act vests final authority in the general  body of  a Cooperative  Society.  it  has  wide powers including  residuary power except those not delegated to any other authority under the Act, the Rules and its bye- laws. In  other words, its power, if any, is only restricted by the  Act, the  Rules, the  bye-laws and  any order having force of  law. This  exercise of  power by  the general body which is in issue cannot be said to be excluded by Rule 36.      Rule 36  does not  deal with  every default  for one to come under  it. In  fact, mere default itself is not covered under this  Rule. Default  has to  be persistent.  Even in a case of  persistent, a  society may or may not take recourse under it. Apart from this Rule there are other rules dealing with default.  Under sub-rule (1) of Rule 39 a disability is provided for  a defaulting member being in arrears exceeding three months in respect of loan taken for being appointed to represent the Society in any other cooperative Society. Sub- rule (2)  similarly provides disability of defaulting member who is in arrears to the Society for the aforesaid period to represent  the   Society.  Rule   59  also   refers   to   a disqualification of such defaulting member who has defaulted to any  Society of  any sum  due  even  in  respect  of  any interest in  any contract  to which  Society is a party etc. Then under Rule 60 a member ceases to be on the committee or to hold  any office in case he continues to be in default in respect of  any sum  due. So there are rules laying down how to deal  with defaulting  member. one of them is, if society desires to expel one then it has to bring him under Rule 36. This itself  shows defaulters  can be  dealt with in various ways and  what is  not provided, not covered by these rules, the field  is open  for the  general body  to  exercise  its discretion.      Reverting back  to the  facts of  the present  case, it cannot be  said when  respondent No. 3 or such other member, who defaulted  by not  even paying  the minimum  as resolved could claim  as a  right for  allotment on  the principle of seniority alone  or that  the resolution of the general body dated 6.1.90  could in  anyway be said to be unfair, unjust, arbitrary, mala fide or irrational liable to be struck down. It may  be where  a very  senior defaulting  member paid the balance amount  only one  week after very junior member paid the full  amount, it  is open for a Society to resolve as it deem fit and proper by giving weightage to the seniority. It is  within  the  permissible  discretionary  field  of  such Society.      So far  giving notice to respondent No. 3 we find there is specific  averment by  the appellant  that  a  registered notice dated  26th April,  1986 was  sent to  her, a copy of which has  been filed  in this appeal. The respondent’s case is, she  has not received any notice from the Society either of the  default or laying down cut off date for the payment, including  notice   dated  26th  April,  1986,  further  the decision of  the general body dated 6.1.90 of relegating her or other  such person to phase II was not on agenda. To this last argument  we do  not find any merit. A general body can always with  the approval of the house in the meeting of its members take  up any  other matter not covered by the agenda and on that account no illegality could be held.      So far  question of  notice to respondent No. 3 whether given or  not, is  a question  not adverted to or decided by Respondent No.  1 viz.,  Delhi Cooperative  Tribunal or  the High Court. Before treating any person to have defaulted, it is  necessary  to  record  that  a  notice  proceeding  such impugned decision is actually served on such member or there is deemed  service under  some applicable  Rule depending on

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the facts. We feel this question of notice to Respondent No. 3 has  not been  adverted to by any of the said authority or Court which  requires consideration.  For this  we send back this case  to the  Tribunal for  deciding this sole question whether there  was notice  to the respondent No. 3 or not as aforesaid. In  case the  Tribunal find  she had  notice  she would not  be entitled for any relief but in case she had no notice her claim for phase I flats cannot be defeated.      Accordingly, we  hold that  a  principle  of  seniority alone cannot  be said  to be  the correct  criteria and  the criteria resolved by the General Body being just, proper and fair  does  not  call  for  any  inference  by  this  court. Accordingly, we  quash the  impugned judgment  of  the  High Court dated  10.11.1995 and the ex-parte order dated 29.9.95 passed by  the  Delhi  Cooperative  Tribunal.  The  case  is remanded back to Respondent No. 1, the Tribunal to decide on the limited question as aforesaid. This appeal is allowed in terms as aforesaid. Cost on the parties.