A warrant for delivery of possession cannot be issued in execution of a decree for mandatory injunction, as there are specific provisions in Rule 32 of Order XXI of the CPC for the execution of such a decree.

( 1 ) THIS revision petition has been filed under section 115 of the Code of Civil Procedure by the defendant-judgment-debtor and is. directed against the order of the Subordinate Judge 1st Class Delhi, dated 24th October, 1969 by which the learned Judge has ordered the issue of a warrant of delivery of possession immovable property in execution of a decree for mandatory injunction. The question raised in the revision is whether the issue of such a warrant in the circumstances of the case is within the jurisdiction of the Court and this question was considered to be of sufficient importance by one of us and has been REFERRED TO the Full Bench for decision.

( 2 ) THE material facts of the case are that the respondent is the landlord (though not the owner) of the piece of land in dispute situated at Jhande Walan, Paharganj, Delhi, where a workshop containing a motor-machinery with electric power owned by the respondent has been installed. It appears that the respondent gave a licence to the petitioner to use the said workshop for a consideration of Rs. 100. 00 per month which was subsequently revoked. On 6th September, 1967, the respondent filed a suit against the petitioner for a mandatory injunction directing the petitioner to quit and vacate the workshop in dispute. The suit was decreed by the trial Court on 15th May, 1968 and the decree passed has become final as the first appeal against the same was dismissed by the Senior Subordinate Judge and the second appeal (No. 45 of 1969) was dismissed by the High Court (T. D. Dua,c. J. , as his lordship then was) on 15th May, 1969.

( 3 ) AFTER the passing of the decree, the respondent took out execution and in pursuance of the same, the petitioner-judgment-debtor was committed to civil prison for a period of seven days, but the decree has remained unsatisfied. Thereafter the respondent on 7th November, 1968 moved an application which has given rise to the present revision and prayed that a warrant for delivery of possession of the workshop in dispute to the respondent-decree-holder be issued under Rule 35 of Order XXI read with clause (5) of Rule 32 of Order XXI and section 151 of the Code of Civil Procedure. The execution Court. by the impugned order, ordered the issue of the warrant, aggrieved by which the judgment-debtor-petitoiner has filed the revision.

( 4 ) THE learned counsel for the petitioner-judgment-debtor has contended that the respondent had taken the risk of instituting a suit only for mandatory injunction to quit instead of the usual suit for delivery of possession on payment of court-fees on the market value of the property according to law and having obtained the decree for injunction, the decree-holder-respondent is entitled to execute the decree only in accordance with the procedure prescribed by Order XXI, Rule 32 of the Code and he cannot be allowed to invoke the aid of the Court to issue a warrant for possession provided by Rule 35 of Order XXI and that on the plain reading of the statutory provisions, the order of the Court below is without jurisdiction.

( 5 ) THE learned counsel for the respondent-decrec-holder has urged that it was perfectly in accordance with law on his part to institute a suit for mandatory injunction against a licensee and the decree granting the mandatory injunction to quit has become final and it is the duty of the Court to effectively execute it. He has urged that under sub-rule (5) of Rule 32 of Order XXI of the Code, the decree-holder has a right to pray to the Court to do, at the expense of the judgment debtor, what he was directed to do by the decree and this would allow the use of the powers and procedure prescribed by Rule 35 and a warrant for delivery of possession, or at all events, a warrant directing use of force against the judgment-debtor to quit and vacate can be issued, even though delivery of possession to the decree-holder be not envisaged or possible under the terms of the decree. The counsel has vehemently