Execution of a decree can be termed as the most important aspect of the civil justice system. It is the last stage of any civil litigation. The success or failure of the civil justice system depends on the success in executing the decree passed by the civil court. In many cases, the courts have stated that civil procedure code contains an elaborate and exhaustive provision regarding the execution of a decree. If any question arises regarding the execution of a decree it has to be decided by the executing court itself and not by any separate suit. Though there is a certain limitation imposed on the executing court as it cannot go behind the decree nor can it question its legality or correctness. There is an exception to this general rule, which states that a decree passed by a court without jurisdiction is a nullity and its invalidity could be set up at any stage including at the stage of execution. Section 38 of the civil procedure code enacts that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Section 37 of the code defines the expression “court which passed a decree” as it enlarges the scope of the expression with the object of giving greater facilities to a decree-holder to realise the fruits of the decree passed in his favour.
As per Section 37 of the code, the following courts would fall within the expression “court which passed a decree”:
- Court of the first instance which passed the decree.
- Court of the first instance in case of appellate decrees.
- Where the court of the first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution, and
- Where the court of the first instance has ceased to have jurisdiction to execute the decree, the court which at the time of execution would have had jurisdiction to try the suit.
From this, it is clear that a court that has neither passed the decree nor a decree is transferred for execution, cannot execute it. Execution of a decree is the last stage of any civil litigation because there are three stages in civil litigation:
- Institution of litigation,
- Adjudication of litigation,
- Implementation of litigation.
The last one which speaks about the implementation of litigation is also known as an execution. A decree comes into existence when any civil litigation is instituted with the presentment of the plaint. Execution or implementation of a decree is only done when parties applies in that regard. A decree of an order will be executed by the court as facilitative and not as an obligation. Where the party fails to approach the court for execution of a decree, then the court is not under any obligation to implement its suo motto.
Execution of a decree is the medium through which a decree-holder compels the judgement-debtor to carry out the mandate of the decree or order as the case may be. Execution of a decree is said to be complete only when the judgement creditor or decree-holder gets money or any other thing which is awarded by judgement or decree passed by the competent court.
The adjudication of a civil suit by a court of law may be divided into two classes:
It can be said that judgement forms the concluding part of the civil suit as it determines the right and liabilities of the parties. Judgement in a civil suit is followed by a decree which is its operating part. Historically, there was a distinction between decree and judgement. Common law adheres to the judgement while the equity court of law deals with the decree. The basic difference between these two is that judgement determines the right and liabilities of the parties and decree plays an important role in defining the scope and limitation of any individual.
A decree is the operating part of the judgement and it has to be as per the judgement. Section 33 of the civil procedure code states about judgement and decree as it clearly states that decree is followed by the judgement. Section 2(2) of the civil procedure code defines decree,
“Decree”, means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include:
- Any adjudication from which appeal lies as an appeal from an order, or,
- Any order of dismissal for default.
The decree is the conclusion reached by the judge after hearing both the parties on merits and expressing the same in writing. A decree should be in harmony with the judgement and it should present the correct interpretation of the judgment.
Certain essentials elements must be present to state that the decision of the court is a decree:
- There must be adjudication: simply it means that for a decision of a court to be a decree, there must be an adjudication of the matter in dispute. If the matter in dispute is not judicially determined then it cannot be termed as a decree. Hence any dismissal of the suit in case of any default cannot be termed as a decree. In case of dismissal of the suit for default of appearance of parties cannot be termed as a decree because the matter in dispute was not judicially determined.
- The adjudication must have been done in a suit: The term ‘Suit’ is not defined in the code. In Hans Raj Gupta v. Official Liquidators of the Dehra Dun-Mussoorie Electric Tramway Co. Ltd: The Privy Council defined the term suit in the following ways, the word suit ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. Though every suit is instituted by the presentation of a plaint it means that when there is no civil suit there is no decree. Therefore a proceeding that does not commence with a plaint and which is not treated as a suit under any act cannot be said to be a suit under the code and the decision given by the court cannot be said to be a decree under section 2(2) of the code.
- Right of the parties in controversy: Judgement means a determination of rights and liabilities of the parties and it is an essential element because adjudication of matter must determine the right of the parties about all or any of the matters in controversy in the suit. This point has an emphasis on two things the first being the ‘right’ and ‘parties’ and secondly on the ‘matters in controversy ’. The word ‘right’ means the substantive right of the parties and not procedural right. The word ‘parties’ means parties to the suit. Basically, there are two parties to a suit one being a plaintiff and another defendant. Thus it bars any third party entry to the matter related to the suit. Therefore an order on an application by a third party, who is a stranger to the suit, is not a decree. The expression ‘matters in controversy’ refers to the subject matter of the suit concerning which some relief is sought.
- There must be a conclusive determination: The determination of the matter must be final and conclusive as regards the court which passes it. Thus an interlocutory order which does not decides the right and liabilities of the parties finally cannot be said to be a decree. If in a case where an order determines conclusively the rights of the parties although it may not dispose of the suit can be termed as a decree. An order dismissing an appeal summarily under order 41 of the code or holding it to be not maintainable or a decision dismissing a suit for want of evidence or proof is decrees as they decide conclusively the rights of the parties to the suit.
- The formal expression of such adjudication: The formal expression of such adjudication is an essential part as all the requirements of the form must be complied with. It must be given in the manner provided by the law.
The further decree has been classified in three different forms:
- Preliminary decree: Where adjudication determines the right of the parties concerning all or any matter in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree.
- Final decree: Where the suit is completely disposed of and it has finally settled all the questions in controversy between the parties and nothing further remains to be decided thereafter.
- Partly preliminary and partly final decree: These types of decrees are passed in a suit relating to possession of immovable property with mesne profit, where the court passes two decrees one being the decree for possession of the property and the other where it directs an enquiry into the mesne profit.
EXECUTION OF DECREE
Section.38 of the civil procedure code lays down the provision relating to the court by which decree may be executed.
‘A decree may be executed either by the court which passed it or by the court to which it has been sent for execution’.
The section means that a court that has neither passed a decree nor a decree is transferred for execution cannot execute it. The court which passed the decree may send it for execution to another court either on the application of the applicant (decree holder) or by the court itself. On the basis of the application made by the decree-holder the court may order for the execution of decree in the following instances:
- By delivery of any property which was possessed by the judgement debtor and the decree passed is concerning such property.
- By attachment and sell of the property of the judgement debtor.
- By arrest and detention.
- By appointing a receiver.
- In any other matter which depends upon the nature of the relief granted by the court.
In case when the application is made by the decree-holder for the execution of the decree the court may issue ‘percept’ to any other court which is competent in that regard. Any question arising between the parties to the suit in the decree shall be determined by the court while executing the decree and not by any separate suit.
When the decree is sent to the other court for its execution then sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a part of the area within the jurisdiction of court A is transferred to court B. In such circumstances, certain question arises as to:
- Whether court A continues to have jurisdiction to entertain an application for execution.
- Whether court B can also entertain an application for execution without a formal transmission of the decree from court A to court B.
The answer relating to the first question has been elaborated by Supreme Court in the case of Merla Ramanna v. Nallaparaju, in which the court stated that: “It is a settled law that the court which passed the decree does not lose its jurisdiction to execute it, because of subject matter thereof being transferred subsequently to the jurisdiction of another court”.
The answer relating to the second question has been a conflicting one. Different views have been given by different high courts as in some cases it stated that both the courts (A and B) would be competent to entertain an application for execution. In another case, the high court has stated that in absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject matter has been transferred.
Execution of a decree is to be done by the court to which the decree is sent. Section 39-42 and Order 21 Rule 3-9 of the civil procedure code deals with the provision relating to the transfer of decree. Transfer of decree for execution is done by the court on the basis of two grounds:
- Suo moto (of its own motion) court can send the decree for execution to the other court, and
- On the application of the decree-holder.
The court to which decree is sent for execution shall require certifying the court which has passed a decree stating how the decree has been executed concerning the fact of such execution. It is an essential aspect relating to the execution of a decree by another court.
The application of the decree-holder for transferring of decree for execution will be entertained by the courts only when certain grounds exist. If in case of the judgement debtor actually resides or carries on business or personally works for gain, within the local limit of the jurisdiction of such court. If the decree directs the sale or delivery of immovable property situates outside the local limit of the jurisdiction of such other court. The court may transfer the decree for execution if the court which passed the decree considers it necessary for any other reason to be recorded in writing that the decree should be executed by such another court.
Transfer of decree for execution is totally on the discretion of the court as; Section 39 nowhere makes it mandatory for the courts to transfer the decree for execution because an application has been made to the court. The decree-holder has no vested right to get the decree transferred to another court. The mere right which is vested with the decree-holder is that it can make an application to the court for transferring the decree for execution to the other court which is merely a procedural right; it’s completely upon the discretion of the court.
PROCEDURE & LIMITATION IN EXECUTION OF DECREE
Order 21 Rule 17 prescribes the procedure to be followed on receiving an application for execution of a decree. Rule 10 of the code prescribes the procedure for application for execution of a decree.
‘where the holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer if any appointed in this behalf, or if the decree has been sent under the provision hereinbefore contained to another court, then to such court or to the proper officer thereof’.
The application for execution of a decree can be made orally or in the written form by the decree-holder. Rule 11 and Rule 12 of the code prescribes relating to oral application and written application for execution of a decree. An oral application can be made by the decree-holder in the case where the decree is for payment of money the court may while passing the decree on the oral application of decree-holder order immediate execution thereof by the arrest of the judgment debtor, before the preparation of a warrant if he is within the precincts of the court. Though in every other case written application is mandatory for the execution of a decree which should be in writing, signed, and verified by the applicant or some other person proved to the satisfaction of the court to be acquainted with the fact of the case. There are certain essential which the court would see when the application for execution of a decree is made by a decree-holder which is provided under Order 21 Rule 10 (2) of the code.
It is the duty of the court to ascertain whether the execution application complies with the requirements of Rule 11 to 14 of the code. If the court is satisfied that the application made by the decree-holder is following the provision of the code then the court must admit and register the application. If in a case where it does not comply with the provision of the act then the court shall allow the defect to be remedied then and within a fixed time granted by the court.
Rule 105 and 106 prescribes the procedure for hearing of the application made by the decree-holder for the execution of a decree. Rule 105 and 106 were inserted by the amendment act of 1976. Rule 105 provides that the court before which the application is pending may fix a date for hearing of such application. In a case where the court prescribed date for the hearing of the application and when the application was called out for hearing and the applicant was not present, the court may dismiss the application and in a situation where the applicant (decree holder) is present but the opposite party (judgement debtor) is not present the court may hear the application ex parte and pass any order which it thinks fit.
Further under Order 21 Rule 22 of the code, the provision relating to notice of execution is prescribed. Rule 22 states that there should be an issue of show-cause notices to the person against whom execution is applied in certain cases. No, where the law requires notices to be issued for execution in general cases but in certain cases so cause notice is required to be issued to the party:
In these following cases, such notice must be issued:
- When the application for execution is made by the decree-holder after the lapse of two years from the date of passing of the decree or more than two years after the date of the last order made on any previous application for execution.
- If an application for execution is made by the decree-holder against the legal representative of the judgement debtor then in such circumstances the court must issue the notice to the legal representative.
- If an application is made for the execution of a decree passed by a court of the reciprocating territory.
- If the judgement debtor becomes insolvent and then the application is made against the assignee or receiver of insolvent judgement debtor notice should be issued to them.
- Where the decree is for payment of money and the execution is sought for arrest and detention of judgement debtor.
- In a case where the application is made against a surety.
- Where an application is made by the transferee or assignee of the decree-holder.
The mere objective behind issuing of notice to the judgement debtor under these circumstances is not only to allow him to put forward any objection against the maintainability of the execution application but also to prevent any surprises for him and to enable him to satisfy the decree before execution is issued against him. Issue of notice to the judgment debtor is intending to safeguard his interest.
If after the issue of notice by the court to the judgement debtor the party fails to appear before the court then the court shall issue a process for execution of the decree unless the court sees any cause for non-appearance of the judgement debtor before the court and any contrary is there.
The period of limitation for execution of a decree which is passed by any competent court is twelve-year from the date when the decree was passed. The period of limitation for the execution of a decree for the mandatory injunction is three years from the date of the decree.
QUESTIONS TO BE DETERMINED BY THE EXECUTING COURT
Section 47 of the civil procedure code prescribes provisions relating to questions to be determined by the court executing the decree. It can be treated as one of the most important provisions in the code relating to the execution of a decree. The principle laid down by this section is that the matter relating to the execution, discharge or satisfaction of a decree that arises between the parties or their representatives should be determined in executing proceeding and not by a separate suit. Simply it means that any question raised between the parties should be determined by the executing court and any further separate suit is barred for this purpose.
The sole objective behind this provision is to provide a cheap and expeditious remedy for the determination of certain questions in executing proceedings without recourse to a separate suit and to prevent unnecessary litigation. The provision saves the time of the court and puts an end to litigation. Section 47 has been enacted to enable parties to obtain adjudication of questions relating to execution without any unnecessary expenses or delay which a fresh trial might entail.
Though there is a difference between Res Judicata provided under Section 11 of the code and Section 47 which again bars any further filing of a suit. Res Judicata is regarding the finality of a judgement passed by the court on matters actually in issue before it and bars any further fresh trial of any kind relating to the same matter and between the same parties, whereas Section 47 deals with the enforcement of such decision and enacts that the question relating to execution shall be tried in execution proceeding only and not by any separate suit.
Section 47 of the code is very wide as it gives exclusive jurisdiction to the executing court in respect of all matters relating to execution, discharge, or satisfaction of a decree arising between the parties or their representatives. Simply it puts a bar for any further litigation relating to a matter for which a decree has been passed by the competent court and any type of question should be dealt by executing court during the executing proceeding.
There are two conditions that must be satisfied for applying Section 47 of the code:
- Any question which is to be raised must be one arising between the parties to the suit in which decree is passed, or their legal representative.
- The question raised must relate to the execution, discharge, or satisfaction of the decree.
This type of question will be determined by the executing court and it has the power to determine such questions during the execution proceeding.
MODE OF EXECUTION
There are various modes by which execution of a decree can be done. After the decree-holder applies to execution of a decree, the executing court can enforce execution. Under Section 51 of the Civil Procedure Code, it provides for different modes of execution in general term, while the condition and limitations under which the respective modes can be availed are prescribed by different provisions.
A decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of any property, or by arrest and detention in the civil prison of the judgement debtor or by appointing a receiver, or by effecting partition, or in such other manner as the nature of the relief may require.
There are different types for the mode of execution and the code itself allows more than one mode of execution of decrees. But in general, the decree-holder has the option to choose a particular mode for executing and enforcing a decree passed by a competent court in his favour. The option of selecting the mode of execution is vested upon the decree-holder to decide in which mode he will execute his decree. There are certain limitations and conditions prescribed in the code for the execution of a decree.
There are different modes for execution as provided in the code:
- Delivery of Property: The two different types of property are dealt with separately in the code the first being Movable Property (Section 51(a), Rule 32) and the other being Immovable Property (Rule 35-36). In the case where a decree is for movable property, it may be executed by:
- Seizure and delivery of property,
- By detention of the judgement debtor,
- By attachment and sale of property, or
- By attachment and detention both.
Money does not come under the ambit of movable property and therefore a decree for money cannot be executed under Rule 31 of the code.
The other being immovable property which is provided under Rule 35 & 36 of the code which correspond to Rule 95 & 96 which lay down the procedure for delivery of property to the auction purchaser who has purchased the property in an auction sale. If the decree-holder proves that the identity of decretal property, the decree must be executed by the court by putting the decree-holder in possession of the property. The possession delivered in this manner is known as khas or actual possession.
- Attachment & Sale of Property (Section 51(b)): Section 51(b) empowers the court to order the execution of a decree by attachment and sale or by sale without attachment of any property. The competency lies with the court to attach the property if it is situated within the local limits of the jurisdiction of the court. In a case where the sale of a property has been taken without an attachment is not void or without jurisdiction and does not vitiate such sale. It is merely an irregularity.
- Arrest and Detention (Section 51(c)): A decree debtor can be arrested and detained in civil prison. If the decree passed is for payment of money, execution by detention in civil prison should not be ordered unless after giving the judgement debtor an opportunity of show cause why he should not be detained, the court should record the reason in writing.
The object behind the detention of a judgement debtor in civil prison is that it enables the judgement holder to realise the fruits of the decree passed in his favour and it protects the judgement debtor who is not in a position to pay the amount does not justify arrest and detention of the judgement debtor since as he cannot be held to have neglected to pay the amount to the decree-holder.
There are the certain exceptions as to who cannot be arrested: a woman, any judicial officers while executing duties, the parties, advocates, and witnesses while attending the court, Members of legislative bodies, and Judgement debtor if decree amount is less than Rs 2000 /- in all these circumstances arrest and detention of the judgment debtor are not possible. If the decree amount is more than Rs 5000/- then the detention of up to three months can be made and if it is more than Rs 2000/- it should be up to six weeks.
These are all different modes by which execution of a decree can be made by the court in the favour of decree-holder.
POWER & DUTIES OF EXECUTING COURT
Power of executing court is prescribed under Section 51 of the civil procedure code. An executing court has plenary power to determine all questions related to the execution of a decree. It applies only to matter arising after subsequent to the passing of the decree. The executing court has got the power to determine all questions which arise before as well as after the execution of the decree. The executing court cannot go behind the decree or question the jurisdiction of the court which has passed the decree. Its role is to make sure that the decree is executed as it stands. The executing court has been vested with the power to refer the judge to ascertain any meaning when the terms of the decree are ambiguous.
The court can treat a suit as an execution application or an execution application as a suit in the interest of justice. When such power is exercised by the court, the relevant date would be the date on which the original proceeding was instituted and not the date of conversion.
In cases where the execution application is sent to the other court for its execution, then Section 42 of the code confers the power on the court executing a decree sent to it with the same power as if the decree had been passed by itself. The sole purpose of execution of the decree is to make sure that the fruits of the judgement should be served to the decree-holder and it is the duty and power of the executing court to ensure that the defendant gives the plaintiff the very thing which is directed by the decree and nothing more or less should be granted.
The power which is to be exercised by the executing court relates to the procedure to be followed in the execution of a decree and do not extend to substantive rights of the parties. The executing court cannot convert itself into the court passing the decree.
Where there is right there has to certain duty. Certain duties are imposed on the executing court as it cannot go behind the decree which is passed by the court. The executing court is bound to execute the decree as it is. It cannot question the correctness of the decree, but in situations where certain terms are vague or ambiguous, the executing court is under the duty to interpret the decree to find out and ascertain the meaning of the term used. If in a case where there is an inherent lack of jurisdiction on the part of the court passing the decree, the executing court has the duty and can refuse to execute the decree.
Maharaj Kumar Mahmud Hasan Khan v. Moti Lal Banker:
The principle lay down:
In this case, the court elaborated the provision relating to the power of executing court.
The issue raised before the court:
The issue raised before the court, in this case, was whether the executing court in course of execution proceeding entertain an agreement or compromise between the parties before it and can it incorporate such agreement or compromise in the decreed as to effect an alteration in or the modification of the decree itself.
The court comprising of full bench stated that it cannot be done. But in an earlier case which was decided by Privy Council in the Oudhi Commercial Bank case, had given a contrary opinion regarding the same issue. The court stated that there can be no dispute that the parties liberty of contract regarding their rights and obligation under the decree are not restricted by any provision of the code of civil procedure, nor about the dictum that if such contract relates to the execution, discharge, or satisfaction of the decree it would be within the ambit of the executing court’s power by the virtue of Section 47 of the code.
Court further held that Section 47 does not confer power on the executing court to adjudicate about the rights of the parties or to deal with all matters relating to the right of the parties under the decree and if the matter is one relating to the execution, discharge, or satisfaction of the decree as passed and is under execution it again appears difficult to accept that the executing court would have jurisdiction to ascertain its legal effect or to pass orders consequential on such adjudication.
Shaukat Hussain & oth v. Smt. Bhuneshwari Devi (Dead) by Lrs & oth:
The contention raised by Mr Chagla appearing on behalf of the appellant was that the property which was attached in execution was a valuable property worth more than Rs. 20,000/- and had been sold for a partly sum due to the decree passed by the court and contended that the circumstances itself were sufficient to show that the sale of the property was liable to be set aside. The contention was based on Section 47 of the civil procedure code where the judgment debtor can ask for setting aside of a sale of property which was done during execution of a decree and further they contended that the sale should be set aside as per Order 21 Rule 90 which prescribes that the sale on grounds of material irregularity or fraud. The appellant contended that due to the sale of the property they have sustained substantial injury because of irregularity or fraud.
Supreme Court stated that the judgement which was pronounced by three different courts earlier was entirely based on Section 47 of the code and not under Order 21 Rule 90 of the code. Court further stated that Section 47 does not deal with the question of material irregularity or fraud in the conduct of sale, nor do they deal with the injury caused to the judgement debtors. The only question which the court based was on whether the sale was illegal because the execution proceeding had taken during the existence of a stay issued by a competent court.
The first two courts held that the stay which was issued by the Munsif Gaya court was in existence when the execution proceeding ended in the sale but, the High Court held a contrary judgement stating that the stay order issued by the court of the Munsif Gaya was null and void as it was passed by a court without competence and therefore the sale which took place in due course was a valid one.
Supreme Court reversed the decision of the High Court and upheld the earlier two decisions of the court and stated that the sale of the property was null and void as a stay order was issued by the Munsif Gaya court.
Jolly George Varghese v. Bank of Cochin:
The appellant, in this case, was the judgement debtor and the respondent was the bank of cochin who was the decree-holder. This appeal was in connection with the execution of a decree.
In this case, a warrant for arrest and detention in civil prison was issued to the appellants under section 51 and order 21, rule 37 of the code of civil procedure. On earlier occasions also there had been a similar warrant for arrest in execution of the same decree. The decree-holder (Bank) had proceeded against the properties of the judgement debtors due to which all their immovable properties had been attached for the sale in the discharge of the decree debts.
The executing court appointed a receiver to manage the properties which were attached. By attaching the properties of the judgement debtor the court issued a warrant for the arrest of the judgement debtor because on earlier occasions also similar warrant had already been issued without any investigation of the current ability and status of the judgement debtor.
The question raised before the court: Whether under such circumstances the personal freedom of the judgment debtors can be held in ransom until payment of the debts, and if Section 51 is read with Order 21, Rule 37 of the code, whether the provision of law is constitutional tested on the touchstone of fair procedure under Article 21 of the constitution.
The court interpreted the section as Section 51 follows that quondam affluence and current indigence without intervening dishonestly or bad faith in liquidating his liability can be consistent, and then no detention is permissible under Section 51 of the code. Article 21 cannot strike down the provision as now interpreted.
This implies that if at any time after passing of an old decree the judgement debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be pebbles. This simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to paying.
In the present case remitting the matters for reconsideration, it directs the executing court to re-adjudicate on the present means of the debtors means the present pressures of their indebtedness, or alternatively, whether they could pay but have improperly evaded or postponed doing so or otherwise dishonestly committees acts of bad faith respecting their assets and direct the court to decide de novo the means of the judgement debtor to discharge the decree in the light of the above interpretation.
Hence the Appeal was allowed.
From the above discussion, it appears that execution is the enforcement of decrees and orders by the process of court, to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
There are many kinds of atrocities faced by the litigant which has been unnoticed by the courts in our country. The Apex court in the case of Satyawati v. Rajinder Singh & Oth, condemned the practice adopted by the judgement debtors observed, “That the decree-holder must enjoy the fruits of the decree expeditiously obtained by them”. However, till date no measures to facilitate the same have been adopted.
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