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Dhanalakshmi vs Kavitha on 18 January, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 18.01.2018

(Reserved on 11.12.2017)

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

CRP(NPD)(MD)No.1307 of 2008
and
MP(MD)No.1 of 2012

Dhanalakshmi … Petitioner

vs.

Kavitha … Respondent

Petition filed under Section 115 of the Civil Procedure Code, against
the order and decreetal order dated 11.02.2008 made in E.A.No.423/2007 in
E.A.No.33/2004 in E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the
file of the Principal District Munsif, Srivilliputhur.

!For Petitioner : Mr.S.Kadarkarai
^For Respondent : Mr.E.N.Venkatesan

:ORDER

This Civil Revision Petition has been filed against the order and
decreetal order dated 11.02.2008 made in E.A.No.423/2007 in E.A.No.33/2004 in
E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the file of the
Principal District Munsif, Srivilliputhur.

2.The revision petitioner would aver among other things that she filed
O.S.No.315/1986 on the file of the Principal District Munsif, Srivilliputhur,
against the defendant/her husband by name, Rajaram praying for past
maintenance of Rs.1,500/- and future maintenance of Rs.300/- per month and
charge over the property in case of failing to pay the said amount. In the
said suit, the petitioner filed I.A.No.823/1986 praying for an injunction
restraining the defendant/Rajaram from alienating or encumbering the suit
property. The suit was decreed as prayed for and the charge was also created
in the suit schedule property. The petitioner’s husband Rajaram filed an
appeal in A.S.No.21 of 1980 before the Sub Court, Srivilliputhur, against the
judgment and decree passed in the suit and that appeal was also dismissed for
default and ultimately the decree ended in favour of the revision petitioner.

3.Learned counsel for the petitioner would submit that in August 1994,
the revision petitioner filed E.P.No.80 of 1995 to execute the decree by
bringing the suit property for sale, since the petitioner’s husband had not
paid the decree amount. One Mr.Subburam and Jeyalaxmi who are brother and
sister of the petitioner’s husband filed E.A.No.99 of 1996 in O.S.No.315 of
1986 under Order 21 Rule 58 CPC claiming themselves to be the partners in the
partnership firm by name, M/s.Sri Gomal Industries and sought to raise
attachment of the schedule property and the said E.A was dismissed. As there
was no purchaser, the revision petitioner herself purchased the property in
question in auction sale and the said sale was confirmed by the executing
court. On 29.01.2004, in E.A.No.144 of 2003, the executing court delivered
possession of the schedule mentioned property to the petitioner and delivery
was also recorded.

4.Learned counsel for the petitioner further submitted that the
petitioner’s husband along with sister and brother said to have started the
above partnership firm which was not registered under the Companies Act and
mortgaged the scheduled mentioned property in question to the Indian Bank,
suppressing the suit filed by his wife, the petitioner herein and interim
order of injunction in I.A.No.823 of 1986 in O.S.No.315 of 1986 with mala
fide intention to defeat the right of the petitioner. In 1995, the Indian
Bank filed O.S.No.444 of 1995 on the file of the Sub Court, Srivilliputhur,
for recovery of a sum of Rs.11,49,363.75/- against the said partnership firm
and the same was transferred to the Debt Recovery Tribunal, Chennai and DRT
decreed the suit in favour of the Indian Bank and to execute the decree, the
recovery officer brought the property in question for auction. The
respondent herein purchased the property in question for a sum of
Rs.3,70,000/-. The respondent/purchaser owned a property opposite to the
suit schedule property. On 16.01.2003, the Tribunal confirmed the sale and
alleged that possession of the suit schedule property delivered to the
respondent, but according to the petitioner, the said delivery is only a
paper delivery and possession is deemed possession.

5.It is further submitted that since the husband of the revision
petitioner failed to pay maintenance, the suit property was attached and
interim order was passed not to alienate or encumber the property and it was
brought for sale and the petitioner herself purchased the property as there
was no purchaser and delivery of possession was also ordered by this Court.
At this juncture, the respondent has filed E.A.No.33 of 2003 praying to
dismiss E.A.No.144 of 2003 filed by the petitioner by obstructing to take
delivery of possession of the property stating that the property in question
was already taken possession by her through DRT, Chennai. The petitioner
contested the said application by filing counter, stating that the alleged
order made by DRT is not valid in the eye of law and claim application in
E.A.No.99 of 1996 fled by M/s.Sri Gomal Industries was dismissed and
therefore, the respondent is not entitled to raise any objection whatsoever
by filing E.A.No.33 of 2003. Thereafter, the petitioner filed E.A.No.423 of
2007 on 23.11.2007 to decide the maintainability of the claim application in
E.A.No.33 of 2004 and it was dismissed on 11.02.2008, against which, the
present revision petition has been filed. In support of his contentions,
learned counsel for the petitioner relied on the following judgments:-

i)Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another reported
in (1997) 3 SCC 694.

ii)Shreenath and another vs. Rajesh and others reported in AIR 1998 SC
1827.

iii)Sameer Singh and another vs. Abdul Rab and others reported in 2014
(6) CTC 98.

6.Per contra, the respondent would submit that she is the court auction
purchaser in DRT, Chennai. One Mr.Rajaram is the husband of the revision
petitioner. He is one of the partners of M/s.Sri Global Industries. The
said firm had availed loan from the Indian Bank, Trichy. The said Rajaram
mortgaged the property in question belonged to him by way of equitable
mortgage for the loan availed by the said firm in Indian Bank, Trichy Branch.
Since there was default of the loan amount, the mortgagee bank has filed a
mortgage suit for recovery of loan amount of Rs.11,49,363.75/- with cost and
subsequent interest in O.S.No.444 of 1995 on the file of Sub Court,
Srivilliputhur. Subsequently, the case was transferred to DRT No.2, Chennai
and a decree was passed as against the said firm. The bank has brought the
property in question for court auction sale on 10.10.2002 and the respondent
has purchased the property in question in court auction for a sum of
Rs.3,70,000/- on 02.12.2002 and the said sale was confirmed on 16.01.2003 and
possession certificate was issued by the DRT on 12.03.2003. The sale
certificate was duly registered before the concerned Sub Registrar on
04.11.2003. Thereafter, the respondent has got approved building plan from
Samynthapuram on 24.02.2004 and patta was also mutated in the name of the
respondent in her own name on 21.04.2004. The respondent would contend that
she has also paid house tax for the property in question and it was marked as
P.14 in claim application E.A.No.33/2004 and after the chief examination was
over on 11.08.2005, the case was posted for cross examination by the revision
petitioner and at this juncture, the revision petitioner has filed
maintainability of the abovesaid claim petition in E.A.No.423 of 2007 on
23.11.2007 and it was dismissed on 11.02.2008 and the learned Judge has
rightly dismissed the application and therefore, the interference of this
Court is not necessary.

7.Heard the learned counsel for the petitioner as well as the
respondent and perused the materials available on record.

8.The marriage between the petitioner and one Rajaram was solemnized on
17.06.1986 and as her husband deserted the petitioner, she filed O.S.No.315
of 1986 for maintenance and also prayed for an interim injunction restraining
the respondent not to alienate or encumber the suit property. Initially,
interim injunction was granted and thereafter, the suit was decreed on
02.01.1990. Aggrieved over the judgment and decree passed in the suit, the
petitioner’s husband filed appeal in A.S.No.21 of 1990 which was dismissed
for default. Since the petitioner’s husband failed to pay maintenance amount
as per the decree, the petitioner filed E.P.No.80 of 1995 before the
executing court to bring the suit property for sale and E.P was allowed and
property was brought for court auction sale. Since there was no bidder, the
petitioner purchased the said property on 25.10.2002 and delivery of
possession of the suit property was ordered on 08.12.2003 and the property
was delivered on 29.01.2004 on the application filed in E.A.No.144 of 2003
for delivery.

9.Perusal of the records shows that the respondent filed E.A.No.33 of
2004 praying for dismissal of the application filed by the petitioner in
E.A.No.144 of 2003 by obstructing to take delivery of possession of the
property claiming that possession has already been taken by her through DRT,
Chennai. Perusal of records further shows that M/s.Sri Gomal Industries
filed an application in E.A.No.99 of 1996 claiming that the suit property
belongs to the firm which was dismissed stating that the property exclusively
belonged to the petitioner’s husband. Perusal of the records also shows that
a specific plea was taken by the petitioner’s husband that the suit property
belonged to the partnership firm and the petitioner could not claim any right
in the suit property. The issue was framed in that regard and as per Ex.A3,
the learned Judge has given a finding that the property exclusively belonged
to the petitioner’s husband and not to M/s.Sri Gomal Industries and E.A.No.99
of 1996 filed by the brother and sister of the petitioner’s husband Rajaram
claiming to be the partners of the said firm stating that the property
belongs to M/s.Sri Gomal Industries was dismissed by the learned Judge
stating that the firm was not a registered firm.

10.As rightly contented by the learned counsel for the petitioner,
while the mortgagee suit filed by the bank for recovery of the loan amount of
Rs.11,49,363.75 with cost and subsequent interest, the partners of the said
partnership firm and the petitioner’s husband were well aware of the fate of
the suit in O.S.No.315/86 filed by the revision petitioner and the charge
made over in the said suit. The petitioner has purchased the suit property
in court auction on 25.10.2002 which according to the respondent was
delivered on 29.01.2004. Even assuming that the respondent is admitting
delivery of possession, the respondent is only in deemed possession, but the
petitioner has taken possession of the suit property through court of law and
delivery has been recorded and therefore, the petitioner has got a valid
title over the suit property.

11. The petitioner’s husband who is one of the partners in M/s.Sri
Global Industries should have brought to the knowledge of DRT before which
the suit filed by the bank was pending, that already charge was made over in
the suit property. The petitioner’s husband as well as his sister who
are said to be partners of M/s.Sri Global Industries had taken steps to
thwart the order passed in favour of the petitioner and colluding each other,
they suppressed all the material facts in order to defeat the right of the
petitioner, especially when there is a specific order of injunction not to
alienate or encumber the suit property. The argument of the respondent that
the petition has been filed belatedly cannot stand in the eye of law. It is
a clear abuse of process of court by the petitioner’s husband, his sister and
respondent to defeat the right of the petitioner and got order in their
favour.

12.In many matters relating to matrimonial disputes, time swallows the
relief sought by the party concerned. Maintenance of wife and children is
one of the primary responsibility of the husband and in the present case,
though maintenance was ordered, the petitioner’s husband has abused the
process of the court and prolonged the litigation from 1986 onwards without
even paying a single pie to the wife towards maintenance and in spite of the
order passed by the Court, the husband of the petitioner and his family
members had by all methods colluded with each other and had used the courts
to defeat the rights of the petitioner.

13.The Law Ministry as well as Courts have shown serious concern over
the pending litigations of maintenance filed by womenfolk and are taking
steps to dispose of maintenance cases to see to it that womenfolk get remedy
at the earliest and this is one of the very classic case, where the
petitioner is not even able to get her maintenance from 1986 onwards till
date and yet the court proceedings have not been completed.

14.At this juncture, it is relevant to consider the order passed by
this Court in Civil Revision Petition(PD) No.3406 of 2013 dated
25.04.2017(A.Savitha Ujwala and Baby Niharaikaa Venkatagiri vs.
M.R.Venkatagiri), wherein, this Court this Court has extensively dealt with
the consequences in the delayed disposal of maintenance petitions. The
following paragraphs of the said order worth reproduction:-

”7. An husband’s obligation to maintain his wife arises on his
marriage with a woman. Such obligation towards his children arises on their
birth. These obligations are imposed on him ”by operation of law”. It is
also a ”moral obligation” imposed upon him. It is ‘immoral’ and ‘illegal’
to deny them maintenance. In my view, it is a ”sacred duty of an husband or
father”, as the case may be, towards his wife and children. This is the
least the father of a girl expects from his son-in-law. Otherwise why should
he marry a woman and leave her and her children in lurch in the street. If he
is not in a petition to maintain her and the children he should have
remarried a bachelor.

8. Besides the love and affection of their father, the children
can also seek financial support from their putative father for their genuine
and reasonable needs. It is ”too cruel on his part to deny them
maintenance”. There may be many disputes or differences between the parents
but that cannot be a reason to refuse them maintenance and make them to
suffer. ”In matrimonial disputes the innocent children are the worst
sufferers”. The warring couples fail to understand their sufferings. The
relief of divorce has been granted by Court to a couples, though they become
ex-husband and ex-wife, they continue to be the parents of their children.

9. In the matrimonial proceedings instituted under the said
personal laws, the wife and children can seek maintenance against the
husband/father, as the case may be. It is to provide them financial support.
It is for their survival, as long as the matrimonial proceedings are pending.
Thus, they came to be called ‘pendent lite maintenance’. It is also a
‘temporary alimony’ to the wife. They are in the nature of granting ‘interim
relief, ‘interim measure’, ‘interim protection’.

10.The component of such maintenance includes a ‘reasonable and a
fair’ amount for the woman to maintain herself ‘according to the mode of life
to which she is accustomed to’, ‘according to the status to which she is
entitled to’, ‘according to the mode or life style to which her husband is
accustomed to’. But, in any case, it cannot be for a luxurious mode of living
or for ‘extravagansa’ and not beyond the means of the husband. In the case
of children, this component also includes their educational expenses. They
can be granted litigation expenses and monetary relief to cover their to and
fro expenses to attend the Court and return their homes.

11.Hindu wives can seek such pendent lite maintenance in a
pending matrimonial proceedings under Section 24 of the Hindu Marriages Act.
The children can seek such maintenance from their father under Section 26 of
the Act. Section 37 of the Indian Divorce Act, 1869, Section 39 of the Parsi
Marriage and Divorce Act, 1936, Sections 36 and 38 of the Special Marriage
Act, 1954 also deals with grant of pendent lite maintenance. Though the
position in Islamic Law is different, Islamic Law do have provision for the
women and children.

12.The object of Section 24 of the Hindu Marriages Act in
providing maintenance to a party in matrimonial proceedings is obviously to
provide financial assistance to the spouse to maintain herself or himself
during the pendency of the proceedings and also to have sufficient funds to
carry on the litigation so that the spouse does not unduly suffer in the
conduct of the case for want of funds.

13. Section 24 of the Hindu Marriage Act seeks to provide
financial support, wherewithal to the wife and Section 26 of the Act seeks to
provide maintenance to the children to withstand the financial crisis arising
out of the separation and also to face the matrimonial proceedings initiated
by her husband.

14.The object behind Sections 24, 26 of the Hindu Marriage Act is
survival of the wife and children as long as the matrimonial proceedings are
pending. It also enures to the appeals, revisions and connected proceedings
arising out of the matrimonial proceedings, either from the pendente lite
maintenance proceedings or from the main matrimonial proceedings.

15. One disturbing feature which requires our attention is delay
in the disposal of the maintenance petitions under Sections 24 and 26 of the
Hindu Marriage Act.

16. In this case, the wife and children of the respondent have
filed this maintenance petition in I.A.No.142 of 2013 under Sections 24, 26
of the Hindu Marriage Act as early as on 12.12.2012. Even today, it is
pending.

17. This is a classic example of ‘Law’s delay’, ‘Court’s delay’,
‘Judge’s delay’, ‘System law’, ‘System failure’. All the stakeholders in the
administration of gender justice shall owe responsibility for this sorry
state of affair.

18. In a matrimonial proceedings, the women and children are
fighting the husband, father, as the case may be not on equal footing. Some
women gets financial support from their parents, brothers and sisters and
also some work and earn. These are all exceptional cases. Many women and
children are unable to face the onslaught of matrimonial proceedings because
of their financial crisis. The husbands exploit their this pitiable plight.
This is an area where ‘women empowerment’ is completely lacking.

19. In view of the mad rush in matrimonial Courts, it is very
easy to go into these Courts, but very difficult to come out of these Courts
within a short span of time. It is time consuming.

20.The women and children financially suffer very much. During
the pendency of the matrimonial proceedings without proper financial support
their survival becomes very difficult. They also suffer emotionally,
mentally, physically, economically and also fiscally (financially).

21.The women and children are in a disadvantageous position,
whereas it is not so in the case of husbands. Capitalising their this
financial constraints, the husbands torture them by dragging on even these
simple maintenance petitions for years together.

22.Adding fuel to their worries, the Courts also contribute their
part by their long delay in disposing of these simple maintenance petitions.
Actually by their inaction the Courts abets the perpetration of matrimonial
violence and exploitation of women and children by the husbands. The present
case before us itself is a classic example for this allegation.

23.Presently this woeful situation prevails in almost all the
Family Courts and in other Courts dealing with matrimonial proceedings. The
situation is not far better in the Magistrate’s Courts dealing with
maintenance petitions under Section 125 Cr.P.C.

24.If statistics of the pendency of these maintenance petitions
are called for from these Courts and studied, we have to hung our heads, we
will be ashamed to see the face of the affected women and children.

25.The women and children are standing in queues in these Courts
to get relief even in these simple maintenance petitions for years together.
It is quite a sickening sight. They did not get their due share of justice in
the administration of gender justice by these Courts. Practically, the women
and children are neglected by these Courts. Only lip service is being
rendered to them.

26.Actually, these pendent lite maintenance petitions have to be
disposed of in a summary manner. In these petitions, the work involved is
very very minimal. In these petitions, a prima facie view as to the existence
of relationship between the parties, financial capacity of the husband and
the financial need of the wife and the children are required to be
considered. Mostly income documents will be referred to. This can be done by
reading the affidavits of the spouses.

27.On the first hearing or in the next hearing or at least in the
further hearing these simple maintenance petitions can be easily disposed of,
fixing a reasonable quantum of maintenance. It is not a difficult and
herculean task. The learned Judges need not write lengthy orders running to
several pages. It is just a miscellaneous petition for interim measure. A
short and swift order will do.

28.Keeping this in mind, the Law Makers have fixed a prescribed
period within which these maintenance petitions have to be disposed of (See
Sections 24, 26 of Hindu Marriage Act, 1955, Section 36 of Special Marriage
Act, 1954, Section 37 of Indian Divorce Act, 1869, Section 39 of Parsi
Marriage and Divorce Act, 1936, also see 3rd proviso to Section 125 Cr.P.C
and Central Act No.50 of 2001). Generally, these petitions should be dispose
of within 60 days from the date of service of notice on the wife.
Subsequently, in some Statutes, this period also has been reduced.

29.Yet, what is happening in the Family Courts, in the other
matrimonial Courts and in the Magistrate’s Courts is very alarming. The
learned Judges try these simple maintenance petitions like a murder case in a
Sessions Court or a most complicated suit before a Civil Court. Consequently,
this also contributes to the Law’s delay.

30.After a cruelling exercise, the wife and children gets
maintenance orders, generally, a paultry sum, unrealistic and unmatching to
the high inflation and spiralling prices of even essential commodities.
Sometimes, the Courts dismiss them on a misunderstanding of law.

31.After so much legal battle, some merciful learned Judges
passes maintenance orders. This will signal one part of end of a journey.
Therefore, the women has to fight another battle to collect the maintenance
amount so ordered by filing collection petition or the Execution Petition.
The husband will be ready to spend any amount on matrimonial litigation but
he will not have the heart to pay a paltry sum towards maintenance to his
wife and children.

32.The situation is not happy in the revisions and appeals filed
before the Sessions Courts and also before this Court. The women and children
will have to wait for several years and till the orders are passed they
suffer in silence. This is not the aim of law. This is not a correct justice
delivery system.

33.Unlike in other litigations delay in the disposal of
maintenance petitions affects the women and children very much. It affects a
cross section of the society. It is human (woman) suffering. There are cases
in which woman and children could not get financial support to survive
themselves and face the matrimonial proceedings initiated by the husbands.
Ultimately, they give up the legal battle, leave the Court with wounded
feelings. And ex parte orders are freely passed. The erring husbands happily
leave the Court. There is a victor and a vanquished. The result is failure of
justice in gender justice. These are stark realities staring at our face.

34.There is no point in crying over the spilt milk. Past is
past. Let us think of the future. Some remedial measures have to be
attempted. Judges dealing with these simple matters must realise their
responsibilities and their social obligation towards these type of litigants.
They must keep in mind their pitiable plight. Unreasonable delay in the
disposal of these simple maintenance petitions exhibits inefficiency on the
part of the learned Judges.

35.Even in these petitions mediation, reconciliation can be
attempted. Courts can effect compromise even on the quantum of maintenance in
these maintenance petitions and pass orders accordingly [See Order 32-A,
Section 89 CPC, Section 23(2) Hindu Marriage Act, Section 9 Family Courts
Act, 1984 and Afcons Infrastructure Ltd and Another vs. Cherian Varkey
Construction Co. (P) Ltd [(2010) 8 SCC 24].

36.Our aim should be to secure succor to the affected women and
children quickly. In these matters delayed justice is denial of or burial of
justice. Here hurried justice is the need of the hour. Our learned Judges are
to be sensitized. They must made of aware of this darker side of gender
justice. The same situation prevails in the Criminal Courts, in the Court of
Judicial Magistrates, Metropolitan Magistrates, Mahila Courts, Family Courts,
Sub-Courts and District Courts.

37.In these matters, the Tamil Nadu State Legal Services
Authorities, District Legal Services Authorities, Taluk Legal Services
Authorities, High Court Legal Services Committee can play a significant role.

38.Very recently on 13.04.2017, in C.R.P.(PD)No.1366 of 2017, I
have also issued several directions for the speedy disposal of these
simple maintenance petitions.

39. In view of the foregoings, it is ordered as under:

(1) The learned I Additional Principle Judge, Family Court, Chennai is
directed to dispose of I.A.No.142 of 2013 in HMOP No.4157 of 2012, within a
period of 15 days from the date of receipt of a copy of this order.

(2)As soon as the said I.A. is disposed of, the trial court should
submit its completion report to the Registrar(Judicial) of this Court.

(3)Consequently, the connected miscellaneous petition is closed.
(4)In such circumstances, no order as to costs.”

15.In my considered opinion, it is a fraud played on the petitioner by
his husband and his family members and they have cheated the respondent as
well as the bank also, for which, the bank is entitled to proceed against the
petitioner’s husband and brother and sister for recovery of their dues. The
respondent is entitled to claim her remedy in the manner known to law.

16.On the aspect of suppression, it is relevant to consider the
decision of the Hon’ble Supreme Court in Arunima Baruah v. Union of India
reported in 2007 (6) SCC 120, wherein, at paragraphs 11 to 14, it has been
held as follows:

“11. The court?s jurisdiction to determine the lis between the parties,
therefore, may be viewed from the human rights concept of access to justice.
The same, however, would not mean that the court will have no jurisdiction to
deny equitable relief when the complainant does not approach the court with a
pair of clean hands; but to what extent such relief should be denied is the
question.

12. It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of material fact.
What would be a material fact, suppression whereof would disentitle the
appellant to obtain a discretionary relief, would depend upon the facts and
circumstances of each case. Material fact would mean material for the purpose
of determination of the lis, the logical corollary whereof would be that
whether the same was material for grant or denial of the relief. If the fact
suppressed is not material for determination of the lis between the parties,
the court may not refuse to exercise its discretionary jurisdiction. It is
also trite that a person invoking the discretionary jurisdiction of the court
cannot be allowed to approach it with a pair of dirty hands. But even if the
said dirt is removed and the hands become clean, whether the relief would
still be denied is the question.”

17.In the result, the impugned order made in E.A.No.423/2007 in
E.A.No.33/2004 in E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the
file of the Principal District Munsif, Srivilliputhur, is set aside. In view
of the above judgment and circumstances of the case, E.A.No.33/2004 is not
maintainable. The Execution Court is directed to dispose of E.A.No.144/2003
and E.P.No.80/1995 in O.S.No.315/1986 within a period of fifteen days from
the date of receipt of a copy of this order, taking into account the pendency
of EP which is about 22 years and ensure possession of the suit property is
delivered to the revision petitioner immediately, and send compliance report
to the Registrar(Judicial) of this Court. The respondent is directed to work
out her remedy in the manner known to law.

With the above direction, this Civil Revision Petition is allowed. No
costs. Consequently, connected miscellaneous petition is closed.

To

The Principal District Munsif,
Srivilliputhur.

.

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