ORDER :

G. Chandrasekharan, J.

1. This Civil Revision Petition is filed challenging the order dated 09.09.2021 passed in Execution Petition No. 779 of 2018 in O.S. No. 5253 of 2010 on the file of IX Assistant Judge, City Civil Court, Chennai.

2. The learned counsel for the petitioner submitted that the respondent filed a suit in O.S. No. 5253 of 2010 for the relief of

(a) mandatory injunction directing the defendant to vacate and hand over vacant possession of the entire first floor at the old door No. 1/31, then door No. 50, and present door No. 127/2, Perumal Mudali Street, Royapettah, Chennai-14.

(b) permanent injunction in respect of this property against the defendant from interfering with his possession and enjoyment.

(c) permanent injunction against the defendant from interfering with respondent's rights to reach the aforesaid property through ground floor portion at the old door No. 1/31, then door No. 50, and present door No. 127/1, Perumal Mudali Street, Royapettah, Chennai. and for other reliefs.

3. Petitioner contested this suit. The Trial Court partly decreed the suit granting permanent injunction restraining the petitioner/defendant from interfering respondent's right to reach first floor in door No. 127/2 through ground floor portion in door No. 127/1. With regard to the other reliefs, the suit was dismissed.

4. Respondent filed appeal in A.S. No. 49 of 2013. The learned Appellate Judge reversed the judgment of learned Trial Judge with regard to the dismissal of other reliefs and allowed the appeal. Petitioner filed Second Appeal in S.A. No. 218 of 2015 and that was also dismissed. Respondent filed E.P. No. 779 of 2018 under Order XXI Rule 35 of Civil Procedure Code for delivery of the property. The suit was filed for mandatory injunction and permanent injunction. Execution petition ought to have been filed for the reliefs provided under Order XXI Rule 32 Civil Procedure Code. The suit was not filed for the relief of recovery of possession. But the respondent filed the execution petition under Order XXI Rule 35 Civil Procedure Code for delivery of immovable property. Since, the decree is not for delivery of immovable property, execution petition cannot be filed under Order XXI Rule 35 Civil Procedure Code. Under Order XXI Rule 32 Civil Procedure Code respondent can only ask for the detention of the petitioner in Civil Prison or for attachment of his property or by both. When there is no decree for delivery of the property, filing of execution petition under Order XXI Rule 35 cannot be entertained and the execution petition is liable to be dismissed. In support of his submissions, he relied on the judgment reported in AIR 1972 Delhi 142 (Sarup Singh Vs. Daryodhan Singh) for the proposition that in execution of a decree in a suit for mandatory injunction, warrants for possession cannot be issued. The relevant portion reads as follows:

"It is not open to a party to claim the use of the machinery of the execution department of the Court to seek any further or other relief for fulfillment of his object which is not permitted by law. We, therefore, hold that a decree for injunction granted in this case is to be executed by the Court below in the manner provided by sub-rules (1) and (3) of Rule of 32 of Order XXI of the Code and not by issue of a warrant for delivery of possession in accordance with Rule 35 and the impugned order of the execution Court below is without jurisdiction".

It has been held in this case that "where a party is content to seek a decree for injunction to vacate rather than delivery of possession in a suit, he has to face its logical consequences and he can have the decree executed only in the manner provided by Order XXI Rule 32 Civil Procedure Code and the issue of warrant for delivery of possession in execution of a decree for injunction is not justified either by Order XXI Rule 35 Civil Procedure Code or Clause (e) of Section 51 of Civil Procedure Code, as it is impossible to convert a suit and a decr