Calcutta High Court
Himungsu Kumar Basu vs Sudhangsu Kumar Basu on 27 November, 2003
Equivalent citations: AIR2004CAL217, 2004(1)CHN626, AIR 2004 CALCUTTA 217, (2004) 1 HINDULR 267, (2004) 1 CAL HN 626, (2004) 1 CAL LJ 69
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. This first miscellaneous appeal arises out of a judgment and order of remand passed by the 14th Additional District Judge, Alipore, South-24 Paraganas, Calcutta. A very interesting and important question of law is germane for the purpose of due consideration by this Court.
2. A suit has been instituted by the respondent/plaintiff in the Court of first instance for the purpose of administration, accounts and various other consequential relief in connection thereto. The reliefs as prayed in the suit are as follows :
a) For due administration of the estate of the deceased fully described in the Schedules 'A' and 'B' to the plaint;
b) For allotment of the 'A' Schedule property in the share of the plaintiff as a legatee under the 1st Will and Testament of the deceased, Smt. Bijali Prova Basu and in respect of which probate has been obtained by the defendant, granted by the learned 3rd Court of the Additional District Judge, at Alipore in O.S. No. 2 of 1977;
c) For according in respect of the income and expenditure of the estate of the deceased, in the hand of the defendant, as an executor and also as administrator pendente lite;
d) For a decree for Rs. 5,000/- which the plaintiff assessee for the present for accounting and for a further decree which might be found to be due to the plaintiff, after final accounting, if necessary, by appointment of an Advocate Commissioner, on payment of the additional amount of the court-fees ;
e) For a decree for permanent/mandatory injunction requiring the defendant to allow the plaintiff to take separate electric connection and install a meter in his name in the proportion in the occupation of the plaintiff;
f) For permanent injunction restraining the defendant from disturbing plaintiff's peaceful possession user and enjoyment;
g) For appointment of Receiver ;
h) For injunction restraining the defendant from dealing with the suit properties in any way whatsoever and/or from making any additions and alterations;
i) For all costs;
j) For any other relief or reliefs the plaintiff is entitled to under law and equity.
3. The appellant being the sole defendant therein took out an application under Order 7 Rule 11 of the Code of Civil Procedure for dismissal of the suit upon being served with the summons and copy of the plaint. The suit was dismissed on contest. The First Appellate Court set aside the order and sent the matter back on remand for fresh decision according to law. The ground for setting aside the order of dismissal of the suit is that since all the questions regarding administration of the properties of the deceased is covered by the Will, whether the administration has been completed by the executor or not or assent has been given or not can only be considered after having evidence on behalf of the parties. The First Appellate Court is of the opinion that the learned Court of first instance was not justified in rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure. It was further held by the First Appellate Court that the learned Court below (Court of first instance) instead of rejecting the pliant would have called for the defendant to file a written statement and after considering the evidences as will be adduced by the parties should have disposed of the suit on merit.
4. Before me, Mr. Jayanta Kumar Mitra, Learned Senior Counsel ably assisted by Mr. Malay Kumar Ghose, learned Counsel appearing for the appellant and Mr. Asish Bagchi, learned Counsel ably assisted by Mr. Amal Krishna Saha, learned Counsel appearing for the respondent extensively argued the matters on the point. However, before going into their arguments let me test the valuable parts of the plaint which is the root cause for making such application under Order 7 Rule 11 of the Code of Civil Procedure. The important part being paragraph 7 and part of paragraph 8 are set out hereunder:
"7. That inspite of the grant of probate by the learned Court in favour of the defendant and/or taking out of the probate by the defendant as aforesaid, the defendant has not most illegally, wrongfully, with an ulterior motive for illegal gain had/has and/or made no attempt whatsoever for due administration of the estate of the said deceased and/or of the suit properties in accordance with the provisions of law and/or direction containing in the said last Will and Testament of the said deceased and/or of the learned Court giving due share to the plaintiff in the suit properties and/or rendering true and faithful accounts before the learned Probate Court or to the plaintiff in respect of the income and expenditure of the estate of the said deceased, simply to keep the learned Probate Court and also the plaintiff quite in dark. The plaintiff craves leave to file an application before the learned Probate Court as and when required and bona fide advised.
8. That the defendant although is being requested by the plaintiff for completion of the administration of the estate of the deceased and also to hand over the due share of the plaintiff to which the plaintiff is legally entitled to under the Will as a beneficiary/ legatees as per provisions made wherein, the defendant most illegally fraudulently, maliciously for illegal gain had been and has been withholding completion of the administration of the estate of the deceased intentionally and further has not been given any assent to the due administration thereof.................".
5. The factual part of the plaint is more or less admitted. There is no dispute with regard to the properties. There is no dispute that both the appellant/ defendant and respondent/plaintiff are the joint executors under the Will whereunder a Probate was granted. There is no dispute that the respondent/ plaintiff did not join hands as executor to get the Probate. There is no dispute with regard to the entitlement of legacy. Therefore, obviously a question will arise in the mind of this Court that what is the dispute for the purpose of institution of the suit. The real dispute is administration of the estate and allotment of legacy. The others are incidental subject to availability of the aforesaid reliefs. Such prayers, in any event, can not change the nature and character of the suit. In other words, no other relief can be granted unless such relief or reliefs are successfully obtained. The intention of instituting such suit by the respondent/plaintiff is that there is alleged delay in administration of the estate under the Will which has been probated, therefore relief will be given to him by allotment of property inspite of pendency of the administration of the estate by the executors.
6. Admittedly the respondent/plaintiff being executor did not discharge his obligation as executor. The appellant/defendant, though not sole executor, proceeded with the functions of the joint executors and subsequently got appointed as an administrator under the Will. Such administration will be completed when the directions under the Will be completed. The testator intended under the Will that some of the suits are pending and if those are not disposed of during her life-time the two sons of the testator being executors under the Will, will get it disposed of. In accordance with law nobody can defy the right, title and interest of the legatee if there is any assent under the Will which has been probated but that has to be done subject to completion of the administration, otherwise title cannot pass to the legatee. Moreover, rights and obligations are reciprocal. An executor/beneficiary cannot say that he will not discharge the obligation but will get the legacy even during the pendency of administration. It appears to me that the suit is premature one. On the other hand, if there is any grievance of the respondent/plaintiff against the administrator he is empowered to take all possible steps as against the appellant/defendant about his administrationship under the Will within the arms of Indian Succession Act, 1925. Section 141 of the Indian Succession Act, 1925 speaks as follows :
"141. Legatee named as executor cannot take unless he shows intention to act as executor.--If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy unless he proves the Will or otherwise manifests an intention to act as executor".
7. Such section clearly indicates that there is a specific bar against a legatee to get legacy unless and until he fulfils the terms and conditions under Section 141 of the Act, The words '............shall not take.,..........' is comparable with the words 'shall not be able to take' when it is conditional with the other parts of the section. Admittedly plaintiff did not discharge such functions. It is just like a reciprocal promise. Unless you cultivate land you cannot get the crops. When a person died after creating a Will it would be sincere desire of the Court of law to give respect to his/her intention and to protect his/her interest because such person is no more in this world to fight for any cause. Therefore, the named executors are obliged to discharge their duties as representatives of the testator. If one fails to discharge such duties then such person cannot claim any equity. Therefore, if the law is not read in such manner then Section 141 of the Indian Succession Act, 1925 will have redundant face value. Yet the appellant/plaintiff is not interested to refuse from giving legacy but subject to completion of the administration. But the respondent/plaintiff is not only impatient but also forgetful that unless administration is complete title cannot pass. Therefore, if the legacy is directed to be passed on the strength of this so-called administrative suit keeping the administration under the Will pending, it will be obviously hit by the principles of Order 7 Rule 11(d) substantially.
8. In [Mst. Bhagwani Kuer(dead) and Ors. v. Tapeswari Kuer (dead) and Ors.] it was categorically held that to manifest an intention to act as executor, the executor must do things which he was directed to do in the Will by the testator. Where the testator in his Will desired that the executor should perform his Shradh ceremony and it was found that the executor had taken part in cremation of the testator but had not performed his Shradh ceremony, it would be held that the cremation ceremony being different from Shradh could not be said that the executor had manifested his intention to act as executor. This judgment speaks what type of strictness will have to be followed by the Court in such circumstances. Position of this case is much worse than that one yet the respondent/plaintiff is inclined to get the legacy before completion of administration. Therefore, now the question is whether the civil suit is absolute bar at this stage or not. According to me, sometimes a suit can be said to be absolute bar not by application of law but by implication of law. Such implication arises from the interpretation of law. Therefore, either expressly or impliedly a civil suit can be said to be hit by the principle of demurrer.
9. It is an admitted position by virtue of (Saleem Bhai and Ors. v. State of Maharashtra and Ors.) that consideration of the case of demurrer will be borne by the plaint itself. There is no doubt about it and both the parties relied upon such judgment. The judgment speaks at what stage of proceeding relevant facts are needed to be looked into for the plaint for the purpose of coming into conclusion under Order 7 Rule 11 of the Code of Civil Procedure. The purpose is not to wait for an indefinite period in deciding the cause if the cause is available from the face of the plaint. There it was also held that for the purpose of deciding an application under Rules 11(a) and 11(d) and Order 7 of Code of Civil Procedure the averments in the plaint are germane. It is also an admitted position that either this case is hit by Clause (a) or Clause (d) or by both. Therefore, no mistake has been committed by the learned Judge of Court of first instance in entertaining the application under Order 7 Rule 11 of the Code of Civil Procedure. Now the question of 'try' and 'determine' will have to be discussed. Although the question of 'try' is mainly attached to the question of entertainability but determination is a question of finding. Therefore, such question is now necessary to be discussed.
10. Mr. Bagchi, learned Counsel appearing for the respondent himself contended that point of demurrer under Order 7 Rule 11 of the Code of Civil Procedure is not the new one. From the Privy Council judgment reported in 52 Cal WN 812 (Mohammad Khalil Khan and Ors. v. Mahbub Ali Mian and Ors.) upto Division Bench judgment reported in 1978(1) Cal LJ 165 [Indo Swiss Trading Co. (P) Ltd. and Ors. v. Ghatal Steam Nevigation Co. Ltd. and Ors.] stand is uniform. Even I have no doubt or hesitation in my mind about such principle by whatever name it may be called. Similarly I do believe that the explanation as made by Mr. Bagchi in this case is not very clear. The principal point is demurrer as a preliminary issue can be decided at the earliest when there is no need of investigation of fact. Such analytical aspect of the judgment has to be appreciated. The real import is that when there is availability of two possibilities the point of demurrer cannot be decided as a preliminary point but derive from the analysis of the evidence. But when there is no question of two possibilities the point of demurrer can be taken as a point of law and it has to be determined as a preliminary point. In the instant case, the very submission of Mr. Mitra, learned Senior Counsel, appearing for the appellant/defendant is that admittedly there was a Will which was probated. Admittedly, the respondent/plaintiff is entitled to 50% share of the properties of the deceased as a legatee. Therefore, where is the dispute? The dispute is whether a respondent/plaintiff will get legacy now or when the administrative will be over. Such dispute, in my opinion, cannot be said to be factual dispute.
11. According to me, Mr. Bagchi proceeded on a wrong promises by saying that there is no exclusive bar in instituting the suit under Section 9 of the Code of Civil Procedure. On that scope he highlighted various judgments. In [Saraswati and Ors. v. Lachanna (dead)] Through Lrs.] Court held that in the Tenancy and Agricultural Lands Act neither there is any provision for seeking permission of any revenue authority before execution of a usufructuary mortgage nor a forum has been provided for adjudication of a dispute relating to usufructuary mortgage. Therefore, this Civil Court jurisdiction is not debarred. The Supreme Court further held that when the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of dispute arising out of such right or liabilities is provided--in such a situation, ouster of Civil Court jurisdiction is not to be easily inferred. From another judgment [State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao(D) by Lrs. and Ors.] it has been shown that although factually the appeal was dismissed but a guideline under paragraph 5 therein is given which is necessary for due consideration. It was held that when exclusion of jurisdiction of the Civil Court is not readily inferred presumption is to be drawn in favour of existence rather than exclusion of jurisdiction of the Civil Court to try civil suit. The test adapted in examining questions i.e. (i) whether the legislative intent to exclude arises explicitly or by necessary implication and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Thereafter he cited a decision (I.T.I, Ltd. v. Siemens Public Communications Network Ltd.) which has no manner of application in the present case. Section 36 of Arbitration and Conciliation Act, 1996 provides for the enforceability of the Code of Civil Procedure in case of Arbitrator's award in the same manner as if it was a decree of the Court. Section 37 prescribes for appeal. The question was whether the revision under Section 115 of the Code of Civil Procedure applies or not. The only important part might have been that there is no express provision against the application of the Code of Civil Procedure to the proceeding arising out of the Act before a Civil Court. On this issue he lastly cited [Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. Raraesh Chandra Agarwal and Ors.]. Here it was held that a bare perusal of the provisions of the Act leaves no manner of doubt that thereby the jurisdiction of a Civil Court has not been ousted, it was a question of Section 6 of the Specific Relief Act, 1963. It was held that in such matters the Court would not be concerned even with the question as to the title/ownership of the property.
12. Therefore, from the analysis of such judgments it is crystal clear that the jurisdiction of the Civil Court will be either expressly or impliedly barred. So far as the express bar is concerned I have nothing to say but in respect of implied bar I have many things to discuss on the basis of the Indian Succession Act, 1925. In respect of the implied bar right of a party remedy thereof, or right or liability without any Forum is subject-matter of consideration. Similarly, what would be the test the same has been laid down. The test is the legislative intent and having adequate satisfactory alternative remedy. Mr. Bagchi joined issue therein by saying that alternative remedy is no bar for invocation of jurisdiction of the Civil Court. But if there is necessity of discussion of implied bar on the basis of the Section 9 of the Code of Civil Procedure then Court will have no other alternative but to look into the statute which is specifically meant for the same i.e. the Indian Succession Act, 1925. Without going into the controversy as regards the applicability or non-applicability of Section 9 of the Code of Civil Procedure it can safely be construed that an administrator or executor under a Will is not the owner of the properties but custodian of properties as a representative of the Court to protect the interest of the testator who is not in this world to contest the litigation. Therefore, when such right is not available to one how the same will pass to another by virtue of the civil suit is unknown to this Court. Hence, it is necessary to hold on this issue whether the institution of a civil suit at this juncture is impliedly barred under Section 9 of the Code of Civil Procedure or not.
13. To understand this, scope and ambit of the Indian Succession Act, 1925 is to be looked into as to whether such Act is not sufficient to meet the requirement of an aggrieved party or whether the situation is such that the Indian Succession Act, 1925 cannot be said to be comprehensive so that a civil suit is required to be filed for the purpose of coming to a conclusion. My reading of Indian Succession Act, 1925 is that it is a complete Code by itself. Although in certain cases it implies that the Code of Civil Procedure will be principally applicable but that does not necessarily mean that the civil suit is the outcome to meet the necessities. Section 216 of the Indian Succession Act speaks as follows :
"216. Grantee of probate or administration alone to sue, etc., until same revoked.--After any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in which the same may have been granted, until such probate or letters of administration hay or have been recalled or revoked".
14. Therefore, there is no other alternative for the respondent/plaintiff but to apply before the appropriate Court under the Indian Succession Act, 1925 for the purpose of getting such relief at first.
15. That apart, there is every likelihood of the jurisdictional error. Under normal circumstances granting or revoking the power of the probates, letters of administration etc. is given to the District Judge as a delegate of the High Court and in proceeding with such matter before such Court as delegate proceedings will be regulated so far as the circumstances of the case is permitted by the Code of Civil Procedure, 1908. Therefore, even on that score the Court of Assistant District Judge being a subordinate jurisdiction of the District Judge cannot hear out the suit and/or proceedings in connection thereto. The Indian Succession Act, 1925 is comprehensive in nature. If one is aggrieved by any action of an Administrator who is appointed for a limited purpose including representing the suits or with an unlimited power, pendents lite, he can very well apply before the Court for the purpose of revocation or annulment for just cause. The Section 263 along with the explanations are given hereunder:--
"263. Revocation or annulment for just cause.--The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation,--Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance ; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to, the case ; or
(c) The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently ; or
(d) The grant has become useless and inoperative through circumstances; or
(e) The person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect".
16. It is to be remembered that the Administrator is a representative of the Court functioning on behalf of a dead person who cannot carry out the proceedings. This is the crux of the case to understand as to why civil suit cannot be allowed and why a proceeding under the provisions of the Indian Succession Act, 1925 will be initiated. If the suit is allowed to continue now it will be a suit against the Court because the Administrator is working as a representative of the Court. Even in that case leave to sue is required from the Court. But then leave to sue will not help the plaintiff unless legacy is ready for transfer. Therefore, no suit lies but necessary application lies to take cognizance of the matter before the appropriate Court against any illegality done by such Administrator. The Court is not powerless to revoke such authority process of revocation is much more easier than the process of suit. Mr. Bagchi relied upon a judgment reported in AIR 1931 Nagpur 69 (Vithal v. Narayan). Such judgment says although the assent of the executor is necessary to complete legatee's title to his legacy, the executor is not entitled to withhold his consent arbitrarily, and if he does so the legatee is competent to bring a suit to recover the property bequeathed to him by joining the executor with the transferees to whom the property may have been transferred by the executor. Section 332 of the Indian Succession Act, 1925 says that the assent of the executor or Administrator is necessary to complete a legatee's title to his legacy. Hence, the case is to be understood in its perspective. One is assent of the executor and another is assent of the Administrator. Both are not similar. When the property is in the hands of the Administrator it is apparent that legatee's title cannot pass unless administration is complete. The ratio of the judgment is that the suit can be instituted when the property was withheld arbitrarily and when the transfer has been made to a third party at the second appeal stage. Therefore, Court was armed with the factual investigation when the point of demurrer was not available. But when the point of demurrer was taken at the initial stage and rightly so, Court can not allow the suit to go on. This point which has been raised here is absolutely new one. Such judgment can not have any persuasive value on this point. An exceptional circumstances of established arbitrary transfer of the property by the executor to a third party cannot be the rule of justice, At best, the respondent herein can take a plea that if the civil suit is not totally barred under Section 9 of the Code of Civil Procedure having alternative remedy. But when other efficacious remedies are available under the Act itself whether the civil suit will be impliedly barred or not the same has not been discussed in such judgment. Mr. Bagchi submitted that every person has an inherent right to file a suit subject to statutory bar, if any, relying upon the decision (Ganga Bai v. Vijay Kumar and Ors.) He also said that a suit for its maintainability requires no authority of law but the judgment itself says that the inherent right to bring a civil suit can be barred. Therefore, can it not be said that the respondent/plaintiff is debarred under Section 216 of the Act ?
17. He further said that even where the exclusion of jurisdiction of the Civil Court statutorily provided still on availability of requisite grounds the Civil Court can entertain a civil suit. He relied upon (Prakash Narain Sharma v. Burmah Shell Co-operative Housing Society Ltd.). However, according to me, the ratio of the judgment is not so as has been pointed out before the Court. The ratio is that it will be a dangerous proposition to be laid down as way of law that any individual or authority can ignore the order of the Civil Court by assuming the authority upon itself to decide that the order of the Civil Court is one by quorum non-judice. The appropriate Court in such case is for the person aggrieved first to approach the Civil Court inviting its attention to the relevant provisions of law and call it upon to the question of its own jurisdiction and to vacate or recall its order if it be one which he did not have jurisdiction in law to make.
18. Coming back to the situation afresh I have to hold that the scope and ambit of the law is to be understood on the basis of two tests : (i) Whether the legislative intent to exclude arises explicitly or by necessary implication? and (ii) Whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it ? I have no other alternative but to hold that legislative intention speaks that one should approach the appropriate Court under the Indian Succession Act, 1925. From the inception till today there is no change in such Act. Therefore, it might be construed that there is remarkably well placed legislative intent for the purpose of meeting the necessities. That apart a right to sue accrues after meeting certain necessities under the Indian Succession Act, 1925. If one cannot come within the law he cannot claim any remedy within it. In effect there is an implied bar as per the provisions of the Indian Succession Act, 1925. In most of the aforesaid judgments the discussions were made at least in the recent days about jurisdictions of various quasi judicial or administrative authorities. But when the law prescribes a particular mode of hearing of a civil dispute in a proper manner it will be heard in such manner but in no other way.
19. Now the other aspect of the matter is that can it be said that the suit is only hit by Clause (d) or it will be hit by both Clause (a) and Clause (d) or by Clause (a) alone of the Order 7 Rule 11 of the Code of Civil Procedure. Be it hit any one of the clauses or by any one result is the same. The cause of action is not yet ripped for the purpose of invocation of the jurisdiction of the Civil Court. Mr. Bagchi repeatedly said that the suit is not only made for administration but for various other reliefs. I am sorry to say that I cannot appreciate such stand of Mr. Bagchi. There is a reason behind it. According to me, a premature cause of action cannot be held to be cause of action for the purpose of instituting a suit. Therefore, no cause of action is a legal bar for getting any relief in the suit and even in that way suit cannot be held to be good. One can go for partition and administration after becoming entitled for such relief. The other can go for appointment of Administrator when nobody is there to act as Administrator. But there is no third line of filing an administrative suit when administration vis-a-vis assent under the Will is not complete. I also fail to understand why the easiest mode of operation will be ignored by a litigant and get himself involved in an necessary long drawn procedure i.e. so-called administrative suit. This is not the proper way to approach a Civil Court. In such case a Court can definitely take such preliminary point at the earliest to push back such litigant from occupying the precious time of the Court.
20. Although Mr. Mitra has said that his case may not fall under Clause (d) but under Clause (a) yet I do not find any reason to distinguish such features from one another when it is open for the Court to make an immediate justice having balancing factors in a given situation. Mr. Mitra relied upon a judgment (T. Arivandandam v. T. V. Satyapal and Anr.) where it is clear that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7 Rule 11 of the Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. The Trial Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. He also cited the judgment (L.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors.) in its paragraph 12. There I find Court observed that a plea of rejection of plaint can be taken at any stage of the proceeding irrespective of any fact whether any written statement has been filed or issues are framed etc. It is well-settled by now. I do not find any further necessity to discuss the same. In AIR 2002 Cal 247 (Sisir Kana Guha and Ors. v. Ayakar Grihanirman Samabaya Samity Ltd. and Anr.) a Division Bench of our High Court also held that the plaint can be returned at any stage as per the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Therefore, it is to obviate that a meritless suit in such sense should not be continued only numerically.
21. Hence, upon going through the plaint, judgment of the Court of first instance as well as judgment of the First Appellate Court which remands the matter to hear out all the issues on evidence to come out to a definite finding. I have no other alternative but to hold that the learned Judge of the First Appellate Court erred in passing an affirmative order in favour of the respondent/plaintiff. Therefore, such order of the First Appellate Court has to be set aside.
22. Thus, appeal is allowed on contest. The order of the First Appellate Court stands set aside. Interim order, if any, stands vacated. The order of the Court of first instance stands confirmed. Lower Court Records will be returned as expeditiously as possible. Consequential steps by the Court of first instance will be taken up as expeditiously as possible. However, no order is passed as to costs.