Plaintiff was entitled to relief against such encroachment provided application is made in time.

1. The decree holder in O.S. No. 121 of 1986 on the file of the District Munsif s Court, Kuzhithurai, is the revision petitioner. She obtained a decree against the respondent herein on 29. 1989 for declaration and injunction restraining her from entering the suit property and putting up any construction or building. She filed E.P. No. 124 of 1990 under Order 21, Rule 32 of the Code of Civil Procedure alleging that the respondent in defiance of the decree against her committed trespass upon the suit property and put up a shed and a building and she had to be therefore removed from the property, the construction demolished and the respondent arrested. The respondent could not be served and therefore paper publication was effected; she was called absent; set ex parte and delivery was ordered after demolition on 12. 1992. The delivery was to be effected by 1. 1993. The delivery was also effected as per the direction of the Court on 112. 1992.

2. Thereafter, the decree holder/revision petitioner filed a fresh execution petition in E.P. No. 120 of 1995 alleging that the respondent, after the decree had been executed on 22. 1995 in violation of the decree, entered the property once again and put up a second shed and the same had to be removed, if necessary, with police help. The application was filed under Order 21, Rule 32 (5) of the Code of Civil Procedure.

3. The respondent resisted the E.P. contending that the E.P. was not maintainable, that the decree in O.S. No. 121 of 1986 would not bind him nor affect him in any manner, that the schedule property was not the property in his possession, that the petitioner did not have title or possession in respect of the schedule property, that she was estopped from filing a second E.P., that an area of 121?2 cents in S. No. 3084 of Vilavankode Village was a separate and specific plot out of total area of 22 acres 33 cents in the western side of Parakkonathupattu Karaikkadu Purayidom purchased with the funds of the father of the respondents wife at the time of his marriage from one Thanka Bai who in her turn got right over the property as successor-in-interest from one Ponnayyan, that Ponnayyan in turn purchased the property from one Dhamodharan, that the owners had not been made parties, that the respondent had not violated the decree and that therefore it was liable to be dismissed.

4. The learned District Munsif, Kuzhithurai, by his order dated 26-4-1996 dismissed the application holding that a decree for prohibitory injunction could not be executed as provided for in Order 21, Rule 32 (5), that once the decree holder had been given possession through Court and the decree had been executed, there could not be a fresh application for the same relief and if at all the petitioner had any right, it could be only by way of a separate suit. The learned District Munsif also found that the revision petitioner had not specified as to when the respondent committed trespass upon the property and there was also no documentary evidence for the same. The learned District Munsif also relied on the documents filed on the side of the respondent to come to the conclusion that the petitioner was not entitled to any relief.

5. It is as against this the present civil revision petition has been filed.

6. Miss Aanadhavalli, learned counsel for the revision petitioner, submitted that the learned District Munsif, clearly erred in overlooking that the prayer in the E.P. is in accordance with he provisions of Order 21, Rule 32(1), 32(2) or 32(5) and the revision petitioner ought not to have been driven to a separate suit. The learned Counsel submitted that the lower Court clearly overlooked that the decree holder prayed for the removal of the shed put up by the respondent in violation of the injunction decree and the same could be granted under Order 21, Rule 32 of the Code of Civil Procedure. In support of her contention, she relied on a number of decisions, which will be referred to in the course