ORDER: — The appellants herein are challenging the validity of the orders passed in execution of the decree in E.P. No 443 of 1975 in O.S. No. 1222 of 1972. The respondents herein have obtained a decree for declaration of their right to use of road called “Colony Road” and for permanent injunction restraining the appellants from interfering with the use of the road by them in the said suit. The said decree was challenged in appeal by the appellants: but without success. There was a further appeal to this Court in S.A. No 538 of 1975. Pending the second appeal, there was stay of the execution of the decree which was later vacated at the instance of the respondents. The respondents, decree-holders, thereafter filed E.P. No. 443 of 1975 complaining that the appellants have disobeyed the decree for injunction, and seeking the appointment of a Commissioner for removing the thorny shrubs that were grown in the pathway and for arresting of the judgment-debtors for the disobedience of the injunction The executing Court, however, did not direct arrest of the judgment-debtors for disobedience of the decree for injunction,but appointed a Commissioner for removing the thorny bushes to have easy access in the pathway in respect of which they have obtained a decree. The order passed by the executing Court was challenged by the appellants by filing an appeal to the lower Appellate Court. The lower Appellate Court has also upheld the order, of the executing Court.

2. In this appeal, the learned counsel for the appellants, judgment-debtors, contends that Order 21, rule 32, sub-rule (5) of the Code of Civil Procedure can legally be invoked only in cases where there is disobedience of a mandatory injunction and that it cannot at all be used in respect of a decree for prohibitory injunction. According to the learned counsel for the appellants, the decree passed against the appellants merely declares the right of the respondents to use the pathway and restrains the appellants, their agents and their men from interfering with their right of pathway and the decree is not in a mandatory form directing the judgment-debtors to do any positive act such as cutting the thorny shrubs found on the pathway. It is stated that it is only if such a mandatory injunction is contained in the decree, action can be taken against the judgment debtors under Order 21, rule 32, Sub-rule (5) of the Code.

3. The learned counsel is right in his submission that the decree in this case is not in a mandatory form and that the judgment-debtors are not under a liability to do any positive act. The learned counsel is also right in his submission that Order 21, rule 32 (5) of the Code can be invoked when there is disobedience of a positive mandate given by the executing Court. The learned counsel refers to the following decisions in support of his stand: Chinnabba v. Chengalvaraya1; Murari Lal v. Kishore2 and Nallammal v. Marimuthu Boyan3.

4. All these cases lay down a well established principle that while the machinery and remedy provided under Order 21, rule 32 (1) of the Code of Civil Procedure would cover cases of both prohibitory and mandatory injunctions, sub-rule (5) of that rule will apply only to cases of mandatory injunction because it speaks of a positive act to be done by the judgment-debtor under the decree and that wherever there is no mandatory injunction directing the judgment-debtor to do a positive act, the remedy open to the decree-holder is to file a fresh suit seeking mandatory injunction. But I do not see how the order passed in this case by the executing Court is contrary to the well established principles laid down in the above decisions.

5. In this case, there is a decree declaring the respondents’ right to use the pathway and an injunction restraining the appellants from interfering with such right. When the respondents, decree-holders, found that the pathway is so covered with thorny tushes that the right of pathway declared in their favour could not be pro

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