The main legal point established in the judgment is that the decree for prohibitory injunction encompasses the right to construct a compound wall, and obstruction to this right can be remedied under Order 21, Rule 32(5). The court also emphasized the importance of ascertaining possession and ownership in determining the applicability of the rule.

JUDGMENT :

An interesting question as regards the applicability of Order 21, Rule 32(5) arises for consideration in this Original Petition. In the execution of a decree for declaration of title, followed by a prohibitory injunction, whether a Commission can be issued to construct a compound wall, which relief was not, in terms, granted, is the issue involved.

2. Having regard to the seriousness and intricacies of the issue involved, this Court appointed Adv. Jacob P. Alex as Amicus Curiae.

3. Heard Sri. Naseer Moidu, learned counsel for the petitioner; Sri. E.S.M. Kabeer, learned counsel for the respondents and the learned Amicus.

4. Learned counsel for the petitioner would submit that the title of the petitioner over the scheduled property has been declared, followed by a prohibitory injunction restraining the defendants from trespassing into the plaint schedule property, from destroying boundary demarcations therein and also from doing any act interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. Based upon the said decree, the petitioner attempted to put up a compound wall within his boundary, which was obstructed by the respondents herein. In such circumstances, an Execution Petition was filed vide Ext.P5, alleging that the judgment debtors did not allow the decree holder to construct the compound wall on the eastern boundary of the plaint schedule property. Ext.P6 application was also filed to appoint a Commissioner, assisted by a retired survey superintendent, for supervising the construction of the eastern boundary. Ext.P5 Execution Petition and Ext.P6 Commission application, both, were dismissed by Ext.P10 common order, holding that there is no decree for fixation of boundary and that the execution court go beyond the decree. It was also found that the judgment debtor has not made any obstruction. Ext.P10 is under challenge in this Original Petition.

5. Learned counsel for the petitioner would submit that, once the petitioner's title is declared, followed by a decree of prohibitory injunction, interdicting interference with the peaceful possession and enjoyment of plaint schedule property by the defendants/judgment debtors, the decree takes within its sweep the petitioner's right to put up a compound wall. Obstruction, if any, in exercise of such right can surely be remedied under Order 21, Rule 32(5), especially when the explanation thereof makes the provision applicable to prohibitory injunctions. Learned counsel relied upon a judgment of a learned Single Judge of this Court in C.R.P.No.44/2016 dated 15.03.2017 in this regard.

6. Per contra, learned counsel for the respondents would submit that the present Original petition, filed under Article 227 of the Constitution of India, is not maintainable and the petitioner ought to have taken resort to Section 115 of the Code of Civil Procedure. As regards the scope of interference under Article 227, learned counsel relied upon a judgment of Honourable Supreme Court in Surya Dev Rai v. Ram Chander Rai and Others [AIR 2003 SC 3044], wherein the Honourable Supreme court held that the power of superintendence conferred by Article 227 is to be exercised sparingly, only to keep the subordinate Courts within the bounds of their authority; and not for correcting mere errors. Referring to Ext.P5 Execution Petition, learned counsel for the respondents would point out that there was no specific allegation with respect to obstruction in constructing the compound wall, whereas a specific date is mentioned as regards the alleged obstruction caused to the plaintiff from entering into the plaint schedule property for taking coconut, that is to say, on 11.01.2021. Reckoned from that date, the Execution Petition is filed after one year from the alleged date of violation. Secondly, learned counsel pointed out that the granted reliefs were only declaration of title and a prohibitory injunction. No positive act was directed to be done under the de