A commission can be appointed under Order 21, Rule 32(5) of the Code of Civil Procedure to remove obstructions in a cart track when there is a decree for declaration and permanent injunction.

1. Defendants 3 and 4 in O.S. No. 19 of 1969 on the file of District Munsif Court, Coimbatore are the revision petitioners.

2. The matter arises in execution. A decree was obtained by plaintiffs on 28. 1972 declaring their right to use the cart track and defendants and their men were restrained by means of permanent prohibitory injunction from interfering with the plaintiffs right in the same.

3. Alleging that the decree has not been obeyed and judgment debtors are causing obstruction to the cart tract, execution petition was filed and one of the relief sought for was to appoint Commissioner under Order 21, Rule 32(5) read with Section 151 of Code of Civil Procedure to remove all types of obstructions caused in the 10 feet wide suit track and to implement the decree.

4. Petitioners seriously objected the relief sought for, for, according to them they have not caused any obstruction but third party caused some obstruction and it is further contended that being a decree for permanent prohibitory injunction, issue of commission for removal of obstruction cannot be ordered. It is further contended in the objection that such a positive direction can be granted only in a case where decree is mandatory injunction. If at all decree holder is aggrieved, that can only be by filing a separate suit, and the alleged obstruction will amount to new cause of action. They prayed for dismissal of the execution petition.

5. Executing Court overruled the objection and directed appointment of a Commissioner with a further direction that all obstructions caused within the 10 feet width of cart track is to be removed. It is this order of executing court is challenged in this revision petition.

6. Since caveat was entered by respondents I heard the revision petition at the admission stage itself.

7. Learned counsel for petitioners submitted that the application under Order 21, Rule 32(5) of Code of Civil Procedure is not maintainable when the decree is only for declaration and permanent prohibitory injunction. The argument is, the provisions of Rule 32(5) will apply only in case of mandatory decree and in this case, there is no direction of mandatory nature issued to the judgment -debtors. Reliance was also placed by learned counsel on the following decisions:

1. Nari Chinnabba Chetty v. E. Chengalroya Chetty, AIR 1950 Mad. 237; 2. Joseph v. Makkaru Pillai, AIR 1960 Ker. 127 and 3. Kariappa v. Haldappa, AIR 1989 Kar. 163.

In the last of the decisions, Karnataka High Court has taken into consideration other two decisions and has held that in a decree for prohibitory injunction sub-rule (5) cannot be invoked and the remedy of the part is only to file a separate suit.

8. As against the said argument, learned Senior Counsel for respondents submitted that when a decree for declaration is granted, it necessarily follows that the decree holder is entitled to all the benefits flowing from that declaration and one such consequence is that the decree holder is entitled to make use of the cart track free from any obstruction. If Judgment debtors are not obeying or violating the decree, decree holder will be entitled to remove the same through issue of commission and directing decree holder again to file a separate suit will make the decree a mockery.

9. It is further argued by learned counsel that even if second suit is filed and decree is obtained, the same results will follow and the very purpose of the decree will be defeated and judgment - debtor also gets immunity from being proceeded with. It is further argued that the provisions of Order 21, Rule 32(1) read along with sub-rule (5) is only for the purpose of enforcing the decree, for which relief a decree has been granted. It is submitted that a Court of law cannot sit still with folded hands and countenance its injunction being treated with indifference or scant courtesy by the party against whom it was directed and who is bound to obey its terms. The Court should not think that i