Judgement Key Points

NIRMAL CHANDRA MUKHEERJI, J.

( 1 ) THIS is an appeal against the judgment and decree of Sri S. N. Mukherjee, Subordinate Judge, 5th Court, Alipore, in Misc. Appeal No. 709 of 1973 dated 19-2-1974 against those of Sri N. Chakraborty, Mimsif, 6th Court, Alipore, in Misc. Case No. 2-8 of 1972 dated 27-7-1973 arising out of Title Execution Case No. 61 of 1969.

( 2 ) THE facts of the case may briefly be stated as follows:--The plaintiff got a decree for permanent injunction in respect of a path-way_ After the decree was passed, there was obstruction on the part of the judgment-debtons by constructing pillars and iron gate at the entrance of the pathway. The decree-holder filed the execution case when the judgment-debtors filed an application under Section 47 of the Code contending that the execution case for delivery of possession of the disputed pathway in excess of the claim in the absence of mandatory injunction for breaking open and removing the pucca pillars and iron gate is misconceived. The decree-holder filed a written objection contending that the decree was corrected by the appellate court. Commissioner's report and map depicting the disputed pathway as 70 ft, 3 inch long on the south and 66 ft. 8 inch, long on the north with uniform width of 6 ft. and that there being a decree for permanent injunction against the petitioner in respect of the disputed pathway allocations by them that is putting iron gate with brick walls on two sides are illegal and the executing court can pass appropriate order for removal of obstacles put up after the decree. The learned Munsif was of opinion that as the decree-holder got a decree for permanent injunction the court would be competent to direct the removal of the admitted obstruction on the suit passage. The learned Munsif dismissed the application under Section 47 of the Code and the decree-holder was directed to take steps for execution by removing at his cost the obstacles raised by the judgment-debtors. Being aggrieved, the judgment-debtors filed an appeal. The learned appellate court set aside the order of the learned Munsif holding that in the absence of a decree for mandatory injunction the decree-holder cannot execute the decree. Being aggrieved, the decree-holder has come up to this Court.

( 3 ) MR. Shyama Charan Mitter, learn ed Advocate appearing on behalf of the appellant, submits that in the present case it is true that- there was no decree for mandatory injunction tout the plaintiff got a decree for permanent injunction restraining the judgment-debtors from interfering with the possession of the decree-holder in respect of the disputed pathway. Admittedly after the passing of the decree the judgment-debtors have made constructions of iron gate with brick walls at the entrance of the. pathway thereby preventing the decree-holder from using the pathway. In such circumstances, in order to give effect to the decree passed by the court, the court is competent to pass necessary order and it is not at all necessary for the decree-holder to file another suit for mandatory injunction.

( 4 ) MR. Mitter in support of his contention refers to a decision reported in 22 Cal WN 851 : (AIR 1919 Cal 674) (Sachi Prasad Mukherjee v. Amar Nath Roy ). This is a Bench decision and it has been held that "the remedy for a breach of a permanent injunction is by application for execution and not by suit. Order 21, Rule 32 (5) of the Civil P. C. applies to injunctions both mandatory and prohibitory". The judgment was delivered by Richardson, J. Beachcroft, J. however, agreed in making the order proposed by Richardson J. His Lordship did not express any opinion as to whether Order 21, Rule 32 (5) applies to prohibitory as well as mandatory injunction.

( 5 ) MR. Mitter then referred to a decision reported in 38 Cal WN 101: (AIR 1934 Cal 402) (Hem Chandra Naskar v. Narendra Nath ). This is also a Bench decision. In this case their Lordships laid down "clause (5) of Rule 32 of Order 21 of the C. P.

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