Order IX Rule 13 CPC: Setting Aside Ex Parte Decree, Sufficient Cause, Service, Limitation, Appeal & 2026 Supreme Court Law

By Adv. Govind Bali

Order IX Rule 13 of the Code of Civil Procedure, 1908 provides the principal remedy for a defendant against whom an ex parte decree has been passed. It allows the defendant to approach the very court that passed the decree and seek restoration of the suit if either: (i) summons was not duly served; or (ii) the defendant was prevented by sufficient cause from appearing when the suit was called for hearing.

The provision balances two competing principles. A litigant should not lose substantive rights without a fair opportunity of hearing; equally, a defendant cannot deliberately remain absent, allow the plaintiff to obtain a decree, and then reopen the suit merely by making vague allegations about service or counsel.

In 2026, the Supreme Court has again dealt with this area in significant cases. In Deepesh Maheswari v. Renu Maheswari, 2026 INSC 306, the Court set aside an ex parte succession order where a known minor heir was never lawfully represented. In Shantanu Prakash v. Lenovo India Pvt. Ltd., decided on 30 January 2026, the Court condoned a 310-day delay in filing an Order IX Rule 13 application on the peculiar facts and restored the application for decision on merits.

This guide explains the statutory grounds, “sufficient cause”, defective service, knowledge of proceedings, Article 123 limitation, Section 5 condonation, substituted service, Order IX Rule 7, Section 96(2) appeals, Order XLIII Rule 1(d), partial setting aside, fraud/suppression, minors, counsel default and practical drafting strategy.

Quick Answer: When Can an Ex Parte Decree Be Set Aside?

An ex parte decree can ordinarily be set aside under Order IX Rule 13 where the defendant proves one of two alternative grounds:

Ground	What must be shown
Summons not duly served	The process of service was legally defective and the defendant did not have effective notice in sufficient time to appear and answer the claim.
Sufficient cause for non-appearance	Even if service was valid, circumstances beyond the defendant’s reasonable control prevented appearance when the suit was called for hearing.

The two grounds are alternative. A defendant can succeed by establishing either branch, subject to limitation and the statutory provisos.

What Is an Ex Parte Decree?

An ex parte decree is a decree passed after the court proceeds against a defendant who does not appear despite the procedural conditions for proceeding ex parte being satisfied.

It is important to distinguish:

an order proceeding ex parte — the suit is still pending; and
an ex parte decree — the suit has been finally decided against the absent defendant.

Before decree, the appropriate procedural remedy may be Order IX Rule 7. After an ex parte decree, the principal restoration remedy becomes Order IX Rule 13.

Order IX Rule 7 vs Order IX Rule 13

Provision	Stage	Purpose
Order IX Rule 7	Suit still pending after defendant was proceeded ex parte	Allows defendant to show good cause and participate prospectively in the pending suit.
Order IX Rule 13	Ex parte decree already passed	Allows defendant to seek setting aside of decree and restoration of suit.

A common procedural mistake is filing an Order IX Rule 13 application while no decree has yet been passed, or filing only under Rule 7 after the suit has already culminated in a decree.

The Two Statutory Grounds Under Order IX Rule 13

1. Summons Was Not Duly Served

The defendant may show that the summons was never served in the legally prescribed manner or that the purported service was fundamentally defective.

However, the second proviso prevents a decree from being set aside merely because of an irregularity in service if the court is satisfied that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiff’s claim.

This means the modern inquiry is not limited to technical defects in process-serving paperwork. Courts examine whether the defendant had meaningful notice and adequate opportunity.

2. Sufficient Cause Prevented Appearance

The second branch applies even where service was valid. The defendant must show that a genuine and sufficient cause prevented appearance on the date when the suit was called for hearing.

Examples may include, depending on proof:

serious illness or hospitalisation;
death or grave medical emergency in immediate family;
circumstances preventing travel or access to court;
a bona fide mistake regarding the hearing date not attributable to gross negligence;
failure of counsel in circumstances where the litigant remained diligent;
lack of legal capacity, including minority without lawful representation;
procedural events genuinely outside the party’s control; or
other circumstances the court considers sufficient on the facts.

There is no exhaustive list. The expression is deliberately elastic, but it does not protect deliberate inaction, gross negligence or lack of bona fides.

What Does “Sufficient Cause” Mean?

The Supreme Court in G.P. Srivastava v. R.K. Raizada and Parimal v. Veena treated sufficient cause as a fact-sensitive inquiry. The court asks whether the defendant acted as a reasonable litigant and whether the absence was truly beyond the party’s control.

The practical questions are:

What exactly prevented appearance?
When did the obstacle arise?
How long did it continue?
What steps did the defendant take before and after the missed hearing?
Was the defendant otherwise monitoring the case?
Was the application filed promptly after learning of the decree?
Is the explanation supported by contemporaneous documents?

A one-line statement that “counsel did not inform me” or “I was unwell” is much weaker than a chronology supported by messages, medical records, travel documents, case-status screenshots, affidavits and certified orders.

Negligence vs Bona Fide Default

Order IX Rule 13 is not a mechanism for rewarding deliberate non-participation. Courts commonly reject applications where the record shows:

repeated absence after several opportunities;
knowledge of the case but no effort to engage counsel;
knowledge of the hearing date but no explanation for absence;
long unexplained silence after knowledge of decree;
false allegations about non-service contradicted by earlier appearance; or
an application designed merely to obstruct execution.

At the same time, courts ordinarily prefer adjudication on merits where the default is bona fide, delay is adequately explained, and the opposite party can be compensated by costs.

2026 Supreme Court: Deepesh Maheswari v. Renu Maheswari

In Deepesh Maheswari v. Renu Maheswari, 2026 INSC 306, decided on 1 April 2026, the Supreme Court considered proceedings for a succession certificate in which a known minor heir had not been properly represented.

The lower courts had rejected the Order IX Rule 13 challenge. The Supreme Court reversed them. It emphasised that a minor cannot be expected to respond independently to a public notice or initiate proceedings without lawful representation. The respondents knew of the minor’s existence but no effective step was taken to ensure representation through a lawful guardian.

The judgment is important for three reasons:

legal disability matters: courts cannot impute ordinary procedural defaults to a minor who lacked legal capacity to act independently;
effective representation matters: service or publication cannot replace mandatory protection of a known minor’s interest; and
Section 96 and Order IX Rule 13 serve different functions: an appeal examines the decree on merits, while Rule 13 allows examination of service and sufficient cause for non-appearance.

The Court set aside the ex parte succession order and restored the matter for fresh adjudication.

Important Caution: Does Deepesh Maheswari Mean Rule 13 Is Always Available After an Appeal?

No. The Explanation to Order IX Rule 13 ordinarily creates an express bar where an appeal against the ex parte decree has been disposed of on a ground other than withdrawal. Earlier Supreme Court authorities such as Bhanu Kumar Jain, Rani Choudhary and later cases recognise this general structure.

Deepesh Maheswari arose in an exceptional factual setting involving a minor who had not been properly represented, succession-certificate proceedings, material suppression/misstatement and statutory revocation considerations. It should therefore not be read as silently deleting the Explanation to Rule 13.

When both remedies have been invoked, counsel should carefully examine who filed the appeal, the status and legal capacity of the Rule 13 applicant, how the appeal was disposed of, whether the applicant was effectively a party to the original proceeding, and whether another special statute affects the analysis.

2026 Supreme Court: Shantanu Prakash v. Lenovo India Pvt. Ltd.

In Shantanu Prakash v. Lenovo India Pvt. Ltd., decided on 30 January 2026, the Supreme Court considered an Order IX Rule 13 application rejected as delayed by 310 days.

The Court held that, having regard to the factual background of the ex parte decree in the Order XXXVII suit, the trial court ought to have exercised discretion in favour of condoning the delay. The delay was condoned and the Rule 13 application restored for decision on merits.

The order is useful for an important practical point: delay is not decided mechanically by counting days alone. The court must examine the explanation, factual context, conduct and interests of justice. Conversely, condonation is not automatic; a litigant must still establish sufficient cause for the delay.

Limitation: Article 123 of the Limitation Act

Article 123 of the Limitation Act, 1963 prescribes a period of 30 days for an application to set aside an ex parte decree or to rehear an appeal heard ex parte.

Situation	Starting point
Summons was duly served	Date of the decree
Summons was not duly served	Date when the applicant had knowledge of the decree

The Explanation to Article 123 states that substituted service under Order V Rule 20 CPC is not deemed “due service” for Article 123. This can materially affect when limitation begins.

Knowledge of Suit vs Knowledge of Decree

Where summons was not duly served, Article 123 refers to knowledge of the decree. Knowledge that “some case” is pending is not automatically identical to knowledge that a particular decree has been passed against the defendant.

However, courts closely test claims of delayed knowledge. If the record shows that the defendant had actual information about the decree, participated in execution proceedings, negotiated on the basis of the decree, obtained copies, or took steps acknowledging the decree, limitation may be computed from that earlier point.

Can Delay Beyond 30 Days Be Condoned?

Yes. Section 5 of the Limitation Act can be invoked to seek condonation of delay in filing an Order IX Rule 13 application.

A proper application should separately explain:

why the defendant failed to appear in the suit; and
why the Order IX Rule 13 application itself was filed after limitation.

These are related but distinct explanations. A party may have sufficient cause for missing the hearing but no satisfactory explanation for waiting months after knowledge of the decree.

Delhi High Court 2025: Lakshmi Murdeshwar Puri v. Saket Gokhale

In Lakshmi Murdeshwar Puri v. Saket Gokhale, decided on 2 May 2025, the Delhi High Court gave a detailed account of Order IX Rule 13, service of summons, sufficient cause and limitation.

The Court reiterated that mere technical irregularity in service is insufficient where the defendant had notice of the hearing date and sufficient time to appear. It also stressed that “sufficient cause” requires bona fides and diligence rather than mere formal assertions.

The decision is particularly useful in Delhi practice because it synthesises Parimal, Sunil Poddar, Basant Singh and Article 123 principles in one modern decision.

Irregular Service Is Not Always Enough

The second proviso to Rule 13 is frequently misunderstood. It means that a defendant cannot obtain restoration merely by proving a technical defect in the mode of service if the court is satisfied that:

the defendant had notice of the date of hearing; and
the defendant had sufficient time to appear and answer the claim.

Therefore, the application should focus not merely on procedural irregularity but on actual prejudice and lack of effective notice.

Substituted Service by Publication

Substituted service under Order V Rule 20 may be ordered where the statutory conditions are met, including where ordinary service cannot be effected or the defendant is believed to be avoiding service.

For Article 123 limitation, however, substituted service is expressly not deemed due service. If the defendant genuinely lacked knowledge of the decree, the limitation analysis may therefore begin from actual knowledge.

That does not mean every publication-based decree will automatically be set aside. The court will examine:

whether the plaintiff supplied the correct address;
whether ordinary service was genuinely attempted;
whether substituted service was properly ordered;
whether the newspaper/publication had reasonable circulation;
whether the defendant actually knew of proceedings; and
how promptly the defendant acted after knowledge.

Wrong Address and Manipulated Service

One of the strongest Rule 13 cases is where the plaintiff knowingly supplies an old, incomplete or false address to obtain an ex parte decree.

Useful evidence may include:

earlier correspondence showing plaintiff knew the current address;
KYC or contractual documents containing the correct address;
emails or WhatsApp communications;
previous court filings showing another address;
returned postal covers;
process-server reports; and
proof that the alleged address was never occupied by the defendant.

Where service is alleged to have been engineered to keep the defendant away, the issue also engages natural justice and potential abuse of process.

Can Counsel’s Mistake Be “Sufficient Cause”?

Sometimes, but not automatically. Courts distinguish between:

a bona fide advocate error despite a diligent litigant; and
a litigant who stops monitoring the case and later blames counsel.

A strong application should show communications with counsel, instructions, fee receipts, hearing updates and prompt corrective action after learning of the default.

The principle that a litigant should not always suffer for counsel’s mistake does not create immunity from procedural responsibility.

Illness as Sufficient Cause

Medical illness may constitute sufficient cause where it genuinely prevented appearance. Courts may examine:

diagnosis;
hospitalisation dates;
doctor’s advice;
whether the illness actually prevented travel/appearance;
whether counsel could still have appeared; and
whether the defendant acted promptly after recovery.

A generic medical certificate prepared after the event may carry less weight than contemporaneous hospital records, prescriptions, tests and discharge documents.

Minor Defendants and Order XXXII CPC

Where a defendant is a minor, Order XXXII protections become critical. A minor cannot defend litigation independently. The court must ensure representation through a duly appointed guardian for the suit.

Deepesh Maheswari is a strong 2026 reminder that publication or theoretical knowledge cannot substitute for lawful representation of a minor whose rights are directly affected.

Ex Parte Decree Against Several Defendants: Can It Be Set Aside Only for One?

The first proviso to Rule 13 allows the court to set aside the decree against the applicant defendant. But where the decree is of such a nature that it cannot fairly or logically be set aside against that defendant alone, the court may set it aside against all or any of the other defendants as well.

This issue frequently arises in:

partition suits;
joint property disputes;
indivisible declarations;
joint liability cases; and
decrees where rights of co-defendants are inseparably linked.

The court should examine whether partial restoration would create inconsistent or impossible decrees.

Can the Court Impose Conditions While Setting Aside the Decree?

Yes. Rule 13 expressly allows restoration on terms as to costs, payment into court or otherwise as the court considers fit.

Conditions may be used to balance prejudice caused by delay. But they should not be so onerous that they effectively defeat the restoration already granted.

Possible conditions include:

realistic costs;
deposit of an admitted amount in a money claim;
time-bound filing of written statement;
undertaking not to seek unnecessary adjournments; or
expedited trial directions.

Order IX Rule 13 vs Section 96(2) Appeal

A defendant against whom an ex parte decree is passed has a statutory right of first appeal under Section 96(2) CPC. The two remedies address different questions.

Order IX Rule 13	Section 96(2) appeal
Focuses on service and sufficient cause for non-appearance.	Challenges correctness of the decree on merits and law.
Filed before the court that passed the decree.	Filed before the competent appellate court.
If allowed, suit is restored for trial.	Appellate court can affirm, reverse, modify or remand depending on law.

The classic Supreme Court authority Bhanu Kumar Jain v. Archana Kumar explains that these are distinct concurrent remedies, subject to the statutory consequence created by the Explanation to Rule 13.

Can Both Remedies Be Filed?

As a general rule, a defendant may invoke both Order IX Rule 13 and Section 96(2), but procedural consequences follow depending on which proceeding is decided first.

The settled broad structure is:

filing a Rule 13 application does not itself take away the statutory right of appeal;
if the Rule 13 application is dismissed, a Section 96(2) appeal can still be pursued on the merits of the decree;
the specific Rule 13 grounds already adjudicated cannot simply be re-litigated in the merits appeal as though the appellate court were deciding another Rule 13 application; and
if the appeal against the ex parte decree is disposed of (other than withdrawal), the Explanation to Rule 13 ordinarily bars a later Rule 13 application.

Because 2026 Deepesh Maheswari arose on unusual facts, practitioners should not ignore the text of the Explanation when planning parallel remedies.

Appeal Against Rejection of an Order IX Rule 13 Application

Order XLIII Rule 1(d) CPC provides an appeal against an order under Order IX Rule 13 rejecting an application to set aside an ex parte decree.

Therefore, where the trial court refuses to set aside the decree, the immediate remedy is ordinarily a miscellaneous appeal under the applicable Order XLIII framework to the competent court.

A revision or Article 227 petition should not be used as a routine substitute where a statutory appeal is available.

What If the Rule 13 Application Is Allowed?

Order XLIII Rule 1(d) expressly refers to rejection of the Rule 13 application. The remedy against an order allowing restoration must therefore be examined under the applicable procedural framework rather than assuming the same statutory appeal is available.

In an appropriate case, supervisory jurisdiction may be invoked against jurisdictional error, perversity or violation of law, but Article 227 is not a general second appeal on facts.

Can an Ex Parte Decree Be Challenged for Fraud?

Fraud, suppression and manipulated service may support an Order IX Rule 13 application, particularly where they explain why the defendant never had a fair opportunity to contest the suit.

But the appropriate remedy depends on the nature of the fraud. If the challenge goes beyond non-service/non-appearance and attacks the decree as a nullity obtained by fraud on the court, counsel should examine the broader procedural and substantive remedies rather than assume Rule 13 is the sole route.

Execution of an Ex Parte Decree While Rule 13 Is Pending

An ex parte decree remains executable unless stayed. Merely filing a Rule 13 application does not automatically suspend execution.

The defendant should therefore assess whether to seek:

stay of execution;
status quo;
protection against coercive dispossession or attachment; or
conditional security arrangements.

The stay application should address urgency, prima facie grounds under Rule 13, prejudice if execution proceeds and appropriate security.

Ex Parte Money Decree

In a money decree, courts may be particularly concerned about balancing restoration against the decree-holder’s accrued enforcement rights.

A defendant seeking restoration should place before the court:

the underlying contract or transaction;
proof of payments, set-offs or discharge;
the proposed defence;
service defects;
chronology of absence; and
financial/security terms that may protect the decree-holder pending restoration.

The court need not finally decide the defence at Rule 13 stage, but the surrounding facts may be relevant to bona fides and conditions.

Ex Parte Property Decree

Property decrees can create irreversible consequences if execution results in possession transfer, demolition, sale or creation of third-party rights.

A Rule 13 application in a property matter should therefore be filed with:

title documents;
possession evidence;
service/address evidence;
execution status;
site plan and photographs where relevant; and
a focused stay application.

Ex Parte Matrimonial and Family Decrees

Family proceedings require additional caution because rights may change materially after an ex parte decree. In matrimonial matters, statutory family-law provisions may independently govern setting aside ex parte decrees and limitation.

Practitioners should therefore identify whether Order IX Rule 13 applies directly, through statutory incorporation, or alongside a special procedural provision.

For foreign matrimonial decrees, a separate issue arises under Section 13 CPC. See our guide on Foreign Divorce Decree Validity in India.

How to Draft an Order IX Rule 13 Application

A strong application should be structured chronologically rather than rhetorically.

Identify the decree: suit number, court, decree date and relief granted.
State the Rule 13 ground: non-service, sufficient cause, or both in the alternative.
Service record: reproduce the address used, service report and defects.
Actual knowledge: state exactly when and how the defendant learned of the suit/decree.
Non-appearance cause: provide a precise factual explanation.
Limitation: calculate Article 123 expressly.
Section 5: if delayed, file a separate or integrated condonation prayer with complete chronology.
Bona fides: explain prompt steps after knowledge.
Prejudice: identify why denial of restoration would cause serious injustice.
Supporting documents: attach service, medical, travel, communication or legal-capacity material.
Stay: seek protection against execution if necessary.
Prayer: request setting aside of the ex parte decree and restoration of the suit to its original number.

Documents Commonly Required

Issue	Useful documents
Non-service	summons, postal tracking, process-server report, returned envelopes, address proof
Wrong address	KYC, agreement, previous correspondence, Aadhaar/passport/address records, prior court filings
Illness	hospital records, prescriptions, tests, discharge summary, doctor certificate
Counsel default	messages, emails, engagement receipt, diary entry, case-status history
Date of knowledge	certified-copy application, execution notice, bank attachment notice, email, court inspection record
Minor/legal disability	birth certificate, guardianship record, pleadings showing failure to appoint guardian
Condonation	complete chronology with supporting documents for each material period

How to Oppose an Order IX Rule 13 Application

The decree-holder should not merely argue that the decree is correct. The focus should remain on the Rule 13 statutory test.

Useful objections include:

defendant was duly served;
defendant appeared earlier and therefore knew the case;
hearing date was known sufficiently in advance;
alleged illness or emergency is unsupported;
counsel-blame story is inconsistent with record;
application is barred under Article 123;
Section 5 explanation does not cover the delay;
defendant participated in execution or negotiations long before claimed date of knowledge;
the Explanation to Rule 13 bars the application because an appeal was already disposed of; or
the application is a delaying tactic after execution became imminent.

Common Mistakes by Applicants

Not obtaining the complete service record before drafting.
Confusing knowledge of the suit with knowledge of the decree.
Ignoring Article 123 limitation.
Failing to file a Section 5 condonation application where required.
Giving vague reasons such as “personal difficulty” or “counsel was negligent”.
Not explaining every material period of delay.
Attacking the merits of the decree instead of service/non-appearance.
Not seeking stay of execution.
Ignoring the effect of a pending or decided Section 96 appeal.
Not distinguishing Rule 7 from Rule 13.

Common Mistakes by Decree-Holders

Relying only on a technical service endorsement despite evidence defendant never had effective notice.
Suppressing returned summons or incorrect addresses.
Treating publication as conclusive proof of actual knowledge.
Failing to address a genuine medical or legal disability.
Arguing the merits of the original suit instead of the restoration test.
Ignoring a minor’s right to lawful representation.
Opposing every condonation application mechanically without addressing the actual chronology.

2025–26 Case Matrix on Order IX Rule 13

Case	Issue	Key principle
Lakshmi Murdeshwar Puri v. Saket Gokhale, Delhi HC, 2 May 2025	Sufficient cause; irregular service; limitation	Technical irregularity in service alone is insufficient where defendant had notice and adequate time; bona fides and diligence matter.
Shantanu Prakash v. Lenovo India Pvt. Ltd., SC, 30 Jan 2026	310-day delay in Rule 13 application	Condonation must be assessed contextually; Supreme Court restored the Rule 13 application on the peculiar facts.
Deepesh Maheswari v. Renu Maheswari, 2026 INSC 306	Minor heir, non-representation, ex parte succession order	A minor cannot be expected to respond independently to public notice; failure to secure lawful representation can vitiate proceedings.

Frequently Asked Questions

What is the limitation for filing Order IX Rule 13 CPC?

Article 123 of the Limitation Act prescribes 30 days. Ordinarily it runs from the date of decree where summons was duly served, and from knowledge of the decree where summons was not duly served.

Can delay beyond 30 days be condoned?

Yes. Section 5 of the Limitation Act may be invoked, but the applicant must establish sufficient cause for the delay.

Is defective service automatically enough?

No. The second proviso prevents setting aside merely for irregularity in service where the defendant had notice of the hearing date and sufficient time to appear and answer the claim.

Does newspaper publication count as due service for Article 123?

The Explanation to Article 123 states that substituted service under Order V Rule 20 is not deemed due service for that Article’s limitation calculation.

Can I file an appeal against an ex parte decree instead?

Yes. Section 96(2) CPC provides an appeal against an original ex parte decree. The appeal and Rule 13 application have different scopes.

Can both Section 96(2) appeal and Rule 13 be filed?

They are generally concurrent remedies, but the Explanation to Rule 13 creates important consequences once the appeal against the ex parte decree is disposed of. The sequence and status of both proceedings must be analysed carefully.

What is the remedy if the Rule 13 application is dismissed?

Order XLIII Rule 1(d) provides an appeal against an order rejecting an application under Order IX Rule 13.

Can the ex parte decree be executed while Rule 13 is pending?

Yes, unless execution is stayed. Filing the restoration application does not automatically suspend the decree.

Can an ex parte decree be set aside only against one defendant?

Yes in an appropriate case, but the first proviso allows the court to set it aside against other defendants too where the decree is indivisible or cannot fairly stand only against them.

Can counsel’s mistake be sufficient cause?

Potentially yes, where the litigant remained bona fide and diligent. It is not an automatic ground and must be established through facts and conduct.

Can a minor be bound by an ex parte decree without a guardian?

A minor requires lawful representation under Order XXXII. The 2026 Supreme Court decision in Deepesh Maheswari strongly emphasises this protection.

Connected CPC Remedies

Order IX Rule 13 often interacts with other procedural mechanisms. For related civil procedure analysis, see:

Key Takeaways

Order IX Rule 13 is the principal restoration remedy after an ex parte decree.
The statutory grounds are non-service of summons or sufficient cause preventing appearance.
Mere technical irregularity in service is not enough where effective notice existed.
Article 123 ordinarily provides 30 days; Section 5 can condone delay where sufficient cause is shown.
Substituted service under Order V Rule 20 is not deemed due service for Article 123.
A defendant can also challenge an ex parte decree under Section 96(2), but the remedies have different scopes and procedural consequences.
Order XLIII Rule 1(d) provides an appeal against rejection of a Rule 13 application.
Execution continues unless stayed.
Minors and persons under legal disability require effective lawful representation.
The 2026 Supreme Court decisions favour a fact-sensitive rather than mechanical approach to restoration and delay.

Disclaimer

This article is for general legal education and procedural-law awareness only. It does not constitute case-specific legal advice, advertisement or solicitation. Applications under Order IX Rule 13 are highly fact-sensitive and depend on service records, dates of knowledge, limitation, legal capacity, prior appeals, conduct of parties, execution status and the precise nature of the decree.

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