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2012 DIGILAW 4983 (MAD)

Mullaiyammal v. Samuthiradevi

2012-12-19

S.MANIKUMAR

body2012
Judgment Mrs. D. Samudhiradevi and Mr. G. Sugumar, are the plaintiff and defendant respectively in the suit in O.S.No.20 of 2005, filed for a direction to the defendant, to execute a sale deed, in favour of the plaintiff, in respect of the suit property, as per the agreement of sale, dated 03.10.2002, and to register the same, on receipt of the balance of sale amount of Rs.5,00,000/- and in case, if the defendant fails to do so, the Court shall execute a valid sale deed, and to register the same in favour of the plaintiff, as specific performance of the contract and consequently, to direct the defendant, to deliver possession of the suit property to the plaintiff, in entirety or in the alternative, directing the defendant (second respondent) to pay a sum of Rs.4,32,000/- with interest at the rate of 12% per annum. 2. After filing the written statement, the defendant remained ex parte. Thereafter, upon hearing the arguments of the plaintiff and perusing the documents, the learned Principal District Judge, Nagapattinam, by judgment and decree, dated 05.07.2007, has passed the following orders: "(1) That the plaintiff do deposit in the Court within two months from the date of balance of sale consideration of Rs.5,00,000/-. (2) That the defendant within a month from the date of deposit of balance of sale deed, as stated above to execute a sale deed in favour of the plaintiff in respect of the suit property described hereunder. (3) That on the failure of the defendant to execute the sale deed as stated above, this Court to execute the sale deed on his behalf and get it registered. (4) That the defendant to pay to plaintiff a sum of Rs.78910/- towards cost of the suit." 3. Execution Petition in E.P.No.4 of 2008 has been filed by the Decree Holder. As the defendant failed to execute the sale agreement, the Court below has executed the sale deed on 13.10.2009. Thereafter, Mr. G. Kumar, brother of the defendant, has filed E.A.No.5 of 2011 in E.P.No.4 of 2008, to recall the warrant made in E.P.No.4 of 2008 in O.S.No.20 of 2005. Counter affidavit has been filed by the decree holder. As the defendant failed to execute the sale agreement, the Court below has executed the sale deed on 13.10.2009. Thereafter, Mr. G. Kumar, brother of the defendant, has filed E.A.No.5 of 2011 in E.P.No.4 of 2008, to recall the warrant made in E.P.No.4 of 2008 in O.S.No.20 of 2005. Counter affidavit has been filed by the decree holder. Thereafter, E.A.No.6 of 2012, has been filed by him under Order 21 Rules 97, 98, 101 r/w. 151 CPC, contending inter alia that he has a right, title and interest over the suit property and consequently, to hold that the ex parte decree, dated 05.07.2007 and the subsequent execution of the sale deed, dated 13.10.2009, by the Court, as null and void, and not binding on him. On 16.07.2012, the appellants herein, mother, brothers and sisters of respondents 2 and 3, invoking the same provisions, have filed E.A.No.10 of 2012, for a declaration that the decree passed in O.S.No.20 of 2005, dated 05.07.2007, as null and void. Consequently, they have also prayed for dismissal of the Execution Petition. Both the petitions have been dismissed, against which, two appeals in C.M.A.Nos.3549 and 3550 of 2012 have been filed. Though the contentions in the appeals are almost similar, they are disposed of, by separate orders. 4. Facts of the case, as deduced from the pleadings are as follows: Appellants 1 to 8 and respondents 2 and 3 in this appeal are members of a joint and undivided family. The suit property belongs to the abovesaid joint family. Late Gnanasekaran, husband of the first respondent and father of appellants 2 to 8 and respondents 2 and 3, had several buildings, lodges, complex, Cinema Theatre, wet and dry lands and many properties of his own, obtained under a Partition Deed, dated 28.07.1980, as 'B' Schedule properties. He enjoyed the properties along with the family members jointly and from the income derived from the joint family property, has purchased several properties and all the properties were enjoyed by the family members, as one unit. 5. According to the appellants, the suit property was one such property purchased by the late Gnanasekaran, in the name of his son, Mr.G.Sugumar, second respondent/judgment debtor in the years 1992 and 1994. After obtaining the planning permission, construction was put up by the late Gnanasekaran and thereafter, the second respondent occupied the first floor. The third respondent has occupied the Ground Floor. After obtaining the planning permission, construction was put up by the late Gnanasekaran and thereafter, the second respondent occupied the first floor. The third respondent has occupied the Ground Floor. After settling the sons in two separate floors, Gnanasekaran, died on 11.07.1997. Even after his death, all the properties were treated only as one unit and as co-owners, the members of the family were in enjoyment of the properties. While that be so, the appellants came to know that the first respondent was attempting to take delivery of an undivided property, which belongs to the members of joint Hindu undivided family. 6. According to the appellants, the second respondent has no independent right, title or interest over the suit property and that he has no right to enter into any sale agreement, without the concurrence of the other co-owners and co-sharers. In the abovesaid circumstances, they have submitted that the decree in O.S.No.20 of 2005, dated 05.07.2007, obtained against the second respondent, would not bind them. On the above pleadings, they have prayed for a declaration to declare the said decree as nullity and not binding on them. 7. The first respondent, decree holder, in her counter affidavit, has denied the contention that the suit property was a joint family property. She has also submitted that the property was purchased in the name of the second respondent under the sale deeds under Exs.B1 and B2, dated 01.10.1992 and 22.04.1994 respectively and that the RCC building was constructed from out of the funds of the second respondent. The ownership of the land and building by the second respondent was accepted by all the members of the family. As the owner of the property, he had a right and title to the property and therefore, he has every authority to enter into an agreement of sale with the first respondent. Accordingly, when she agreed to purchase the property from the second respondent, an agreement of sale, dated 03.10.2002, was entered into between the parties. The agreed price was fixed at Rs.8,20,000/-. But the second respondent failed to perform his part of his contract. Therefore, she filed a suit in O.S.No.20 of 2005, on the file of the District Judge, Nagapattinam. The suit was decreed on 05.07.2007 and a sum of Rs.5,00,000/-was ordered to be deposited, being the balance of the sale consideration. The agreed price was fixed at Rs.8,20,000/-. But the second respondent failed to perform his part of his contract. Therefore, she filed a suit in O.S.No.20 of 2005, on the file of the District Judge, Nagapattinam. The suit was decreed on 05.07.2007 and a sum of Rs.5,00,000/-was ordered to be deposited, being the balance of the sale consideration. Accordingly, the first respondent deposited a sum of Rs.5,00,000/- into the Court, through SBI Challan, dated 28.07.2007. As the judgment debtor has failed to execute the sale deed, the first respondent has filed E.P.No.4 of 2008, for execution of the sale deed. As the case was transferred to the District Court, Thiruvarur, the learned District Judge executed a Registered Sale Deed, dated 13.10.2009, in favour of the first respondent/decree holder. 8. The Decree Holder has further submitted that all the abovesaid facts were known to the appellants and till the execution of the sale deed, by the Court below, there was no objection from anyone of the members of the family. The decree holder has further submitted that no document has been filed to substantiate the contention that the suit property has been purchased from the income derived from the joint family properties. According to the decree holder, it was a self-acquired property of the second respondent. She has also submitted that the application, E.A.No.10 of 2011, is nothing but an attempt to prevent the delivery of possession being effected, as per the decree. She has also submitted that the application reflects collusion of the appellants with respondents 2 and 3, members of late Gnanasekaran family. 9. Mr. G. Kumar, arrayed as the third respondent in E.A.No.10 of 2011, in his counter affidavit, has admitted the relationship of the parties. In addition, he has submitted that the sale effected in respect of the suit property in the name of the second respondent was for the welfare of the joint family and that the property has been purchased from out of the income of the ancestral property. Building was constructed. After the death of the Kartha of the family, late Gnanasekaran, husband of the first appellant and father of the other appellants and respondents 2 and 3, the properties have been enjoyed by all the heirs in common, without partition. Except the above, he has denied the other submissions made by the appellants. 10. Building was constructed. After the death of the Kartha of the family, late Gnanasekaran, husband of the first appellant and father of the other appellants and respondents 2 and 3, the properties have been enjoyed by all the heirs in common, without partition. Except the above, he has denied the other submissions made by the appellants. 10. Before adverting to the rival contentions, this Court deems it fit to consider some of the decisions on the aspect of plea and proof, regarding purchase of properties, from the income, derived from the joint family properties. (i) In Babubai v. Ujamlal, AIR 1937 Bom. 446 where Beaumont, Chief Justice had summarised the position on this aspect as follows:-"The law, I think, is clearly established that from the existence of a joint family, it is not to be presumed that there is any joint family property. There is no presumption that property which belongs to a member of a joint family is joint family property. The plaintiff in setting out to prove that property 'B' is joint family property must in the first instance discharge the burden of proving that fact. But it is also established that if there is a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be a joint family property. But the question arises what is meant by a nucleus. In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or, 'at any rate, in considerable part.....'. It would, I think, be unfortunate if the Court was bound to presume that something had occurred which on the evidence would not possibly have occurred, and if it be shown that the only joint family property existing at the date of the acquisition of the property in suit was of such a nature that it could not possibly have been the means of acquiring the property in suit, then in my opinion the presumption that the property in suit is joint family property does not arise." (ii) In Appalaswami v. Suryanarayanamurthy and others reported in A.I.R. 1947 Privy Council 189, it was observed :- "11. ... ... Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property." (iii) In Srinivas Krishnaroa Kango v. Narayan Devji Kango and others reported in A.I.R. 1954 SC 379, the Supreme Court cited the aforesaid observation from the decision of the Privy Council with approval and went on to add :-"10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. (iv) In Narayanaswami Iyer v. Ramakrishna Iyer 1965 (I) MLJ (SC) 78 the Supreme Court stated the law on the subject as follows:- "The legal position is well-settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown." (v) In Srinivasan v. Sundaramurthi reported in 1972 (I) MLJ 141 , a Division Bench of this Court held as follows:- "It is well established that if the property stands in the name of the co-parcener of a joint family, mere proof of the existence of the joint family owning some joint family property, does not give rise to any presumption and that it must be established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the coparcener." (vi) In M. Narisimhan v. The Deputy Registrar of Co-op. Societies, reported in 2003 (1) CTC 327 , presumption of the joint family property would arise in such case, only when ancestral nucleus is established. Properties purchased from and out of exclusive fund of the person would be self-acquired property. (vii) In R. Deivanai Ammal v. G. Meenakshi Ammal reported in 2004 (4) CTC 208 , this Court, at Paragraphs 15 and 16, held as follows: “15. It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value. 16. In a Hindu joint family, if one member sues for partition on the foot that the properties claimed by him are joint family properties then three circumstances ordinarily arise. The first is an admitted case when there is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to the joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. While considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. While considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link or nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail.” (viii) In Savithiri Ammal v. Ilayaperumal reported in 2005 (5) CTC 264 , the defendant sold away the property that stood in his name. The sale was questioned by the plaintiff. The defendant contended that there was no joint family property, except a residential house and that the suit property was purchased by him, from and out of his own funds, earned through his avocation as Weaver and from the amounts given by his mother in law. The plaintiff could not establish the existence of nucleus of the joint of family property, prior to purchase of property, in the name of the defendant. In such circumstances, this Court held that burden of proving the property, as self-acquired property would arise only when other person establishes that there existed adequate nucleus of the joint family property. In the reported case, the plea of the plaintiff has been rejected and that the judgments and decrees of the Courts below, dismissing the suit for declaration and recovery of possession, were confirmed in the second appeal. While dismissing the second appeal, this Court has considered a decision of the Apex Court in Mudigowda v. Ramachandra reported in AIR 1969 SC 1076 , which is worth reproduction. The Apex Court held as follows: “there is no presumption that a Hindu family merely because, it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in. the first instance upon the person who claims it as coparcenary property. The Apex Court held as follows: “there is no presumption that a Hindu family merely because, it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in. the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the 'family estate.” 11. Reading of the impugned order shows that on behalf of the appellants, it has been contended that though the suit property was purchased on 01.10.1992 and 22.04.1994, in the name of late Gnanasekaran, plan and permission have been obtained in the name of the third respondent, Mr. G. Kumar, for construction of a RCC building, measuring 1800 Sq.Ft., and during the period, when his father, late Gnanasekaran, was alive, the construction was put up and when the Kartha, late Gnanasekaran, died on 11.07.1997, respondents 2 and 3 were aged about 23 and 20 years respectively. 12. In view of the above, a contention has been made that when the property was purchased in the name of the second respondent, whereas, the planning permission was obtained in the name of his brother, third respondent, and lateron, when the construction was made, it was the intention of the Kartha that members of the joint family should enjoy the property. It has also been submitted that in order to make an amicable settlement, in respect of all the properties, several buildings, lodges, complex, Cinema Theatre, wet and dry lands and many properties, a Power of Attorney, Ex.P2, dated 29.11.1999, has been executed, in favour of respondents 2 and 3, in the presence of their relatives. To prove the source of income, from which, the joint family properties have been purchased by the Kartha, Ex.P1, dated 22.11.1990, family partition has been filed. To prove the source of income, from which, the joint family properties have been purchased by the Kartha, Ex.P1, dated 22.11.1990, family partition has been filed. According to the appellants, after the demise of the Kartha, Mr. Gnanasekaran, on 11.09.1997, they have become co-owners and co-sharers. 13. The appellants have further contended that the second respondent, Mr. G. Sugumar, did not pay the loan in time, the plaintiff/decree holder, Mrs. D. Samuthara Devi, instead of filing a suit for recovery of money, has adopted a different method, by obtaining the signatures of the second respondent, on some documents as security and instituted a suit for specific performance. The appellants have contended that the second respondent has no right or title to the suit property and that therefore, the agreement of sale, and decree in O.S.No.20 of 2005, on the file of the learned District Judge, Nagapattinam, to be declared, as null and void. 14. One Mr. Murugan, examined as PW.1, on behalf of the appellants, has deposed that there was a partition of the properties, under Ex.P1, dated 22.11.1990. Upon perusal of Ex.P1, the Court below has found that the properties said to have been purchased in the name of the family members, have not been mentioned in Ex.P1. Though the RCC building was stated to have been constructed in the year 1995-96, there was no mention about the same in Ex.P2 -Power of Attorney, dated 29.11.1999. Therefore, as rightly observed by the Court below, Ex.P2, dated 29.11.1999, a general power of attorney said to have been executed in favour of respondents 2 and 3, would not cover the suit property, as it was not included as one of the joint family properties. 15. Perusal of the impugned order shows that PW.1, Mr. Murugan, one of the sons of late Gnanasekaran, examined on behalf of the appellants, did not know the details of the income said to have been derived from the joint family properties, expenses, accounts of the properties, the survey number of the suit schedule property and other details of the suit property. Further, upon perusal of renewal of licence for Natesh Theatre, the Court below has noticed that the name of the third respondent, Mr. G. Kumar, alone has been mentioned as licencee of the said Theatre. Further, upon perusal of renewal of licence for Natesh Theatre, the Court below has noticed that the name of the third respondent, Mr. G. Kumar, alone has been mentioned as licencee of the said Theatre. Ex.P14, dated 27.04.1983, sale deed executed in favour of late Gnanasekaran, shows that the property has been was purchased in the name of the late Gnanasekaran, in the year 1983. But the renewal of licence, has been issued in the name of Mr. G. Kumar, third respondent alone and thus, it is evident from his testimony and the contents of the licence that not all the appellants had a right, title or interest over the Cinema Theatre, in common, and that the said Theatre had not been enjoyed as a joint family property. The appellants have not been shown as licencees. 16. Reading of the impugned order further shows that though the appellants have contended that both the respondents 2 and 3 were residing. Per contra, it is the contention of the plaintiff/decree holder that right from the beginning, the second respondent, Mr. G. Sugumar, alone was in possession of the property and only in order to prevent the decree holder from taking possession, he has occupied the building. On analysis of evidence the Court below has found that the appellants have not produced any document to show that the suit property has been purchased from the income derived from the joint family property. 17. An ex-parte decree, directing the second respondent to execute a sale deed, in terms of the prayer made in O.S.No.20 of 2005, has been made on 05.07.2007. After the decree, the appellants 2 to 8 and respondents 2 and 3, seemed to have executed Ex.P3, dated 01.12.2007, deed of licence cum lease to M/s. Oscar Films Private Limited. The Court below, after perusing Ex.B5, dated 29.12.2005, written statement filed by the second respondent, has noticed that the second respondent has categorically admitted that the suit property exclusively belonged to him. 18. The Court below, after perusing Ex.B5, dated 29.12.2005, written statement filed by the second respondent, has noticed that the second respondent has categorically admitted that the suit property exclusively belonged to him. 18. To prove that mutation in the revenue records has been effected in the name of the first respondent, the plaintiff/decree holder has filed Ex.B7, dated 13.10.2009, copy of the sale deed, executed by the Court below, in favour of the first respondent, Ex.B8, dated 13.12.2010, copy of the transfer of patta in her name, Exs.B9 and B10, dated 16.09.2010, property tax assessment in her favour, Exs.B11 and B12, Lawyer's Notice, dated 17.01.2011, sent to respondents 2 and 3 and Postal Acknowledgement Card, dated 18.01.2011, have been marked to prove that despite the request made by the decree holder to quit and surrender vacant possession of the suit property, the judgment debtor and his brother, Mr. G. Kumar, who was in occupation of the RCC building, have not surrendered the possession and that therefore, the decree holder was constrained to seek for police help for taking delivery of the suit property. As rightly observed by the Court below, if the first respondent had any right, title or interest over the suit property, transfer of patta and transfer of property tax assessment would not have been made and that objections would have been recorded in the abovesaid orders. 19. Thus, the appellants have not substantiated their case of existence of the joint family properties and in particular, enjoyment of the same, by all the members of the joint family, purchase of the suit property, from out of the income derived from the joint family properties. If the contentions of the appellants that respondents 2 and 3 were living in the suit property in the 1st and 2nd floors of the RCC building respectively, were to be accepted, then, certainly, when the suit in O.S.No.20 of 2005, has been instituted for enforcement of the agreement of sale, dated 03.10.2002, against the second respondent, Mr. G. Sugumar, stated to have been residing a portion of the building, along with the other co-sharer, respondent No.3, Mr. G. Kumar, then the latter would have every chance to have knowledge of the institution of the suit. There is no evidence to prove that they were enemical at the time of institution of the suit or at a later point of time. G. Kumar, then the latter would have every chance to have knowledge of the institution of the suit. There is no evidence to prove that they were enemical at the time of institution of the suit or at a later point of time. If the suit property and other properties are in possession and enjoyment of the members of the joint family, as co-owners, then the appellants have objected to the action of the second respondent, when he had entered into an agreement of sale, dated 03.10.2002. 20. At this juncture, it is also to be noted that Mr. G. Kumar, third respondent, brother of the judgment debtor himself was one of the attesting witnesses to the agreement of sale, dated 03.10.2002, executed by his brother, second respondent, to and in favour of the first respondent. Having stood as one of the attesting witnesses to the abovesaid sale agreement, it is not open to contend that the third respondent or the other members of the family, appellants herein, were totally ignorant of, (1) the execution of the sale agreement, (2) institution of the suit in O.S.No.20 of 2005; (3) the decree granted and the consequently, the sale deed, dated 13.10.2009 executed by the District Court, Thiruvarur, in favour of the first respondent. 21. As rightly observed by the Court below that if there was no partition of the joint family properties and that the properties held by the members of the family, had common interest or title to the various properties, such as, lodges, cinema theatres, wet and dry lands, then there must be some registers or account books maintained by the members of the family, so that, the revenue derived from some of the commercial units, could be distributed, among them. Admittedly, not even a scrap of paper has been produced before the Court below to substantiate the contention that the possession and enjoyment in common, by all the members of the family. Therefore, the conclusion arrived at by the Court below that the properties seemed to have been in exclusive possession of each another and that the suit property purchased under Exs.B1 and B2, dated 01.10.1992 and 22.04.1994 respectively, is the exclusive property of the second respondent, cannot be said to be manifestly illegal or a perverse finding. 22. Therefore, the conclusion arrived at by the Court below that the properties seemed to have been in exclusive possession of each another and that the suit property purchased under Exs.B1 and B2, dated 01.10.1992 and 22.04.1994 respectively, is the exclusive property of the second respondent, cannot be said to be manifestly illegal or a perverse finding. 22. It is the contention of the decree holder that all along, the second respondent alone was residing in the suit schedule properties and in active collusion with him, the third respondent and the other appellants have stepped in, only to defeat and obstruct the appellant from taking possession, finds force. From the material on record, it could be deduced that the obstruction made by the appellants lacks bona fides. On merits, the appellants have not made out a case for reversal. 23. In the light of the decisions stated supra and the discussion, the appeal is dismissed. Consequently, the interim orders are vacated. No costs.