JAI DAYAL Vs. KRISHAN LAL GARG

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the learned single Judge of the Allahabad High Court, made on 9-4-1980 in Execution Second Appeal No. 789 of 1969.

(2.) The admitted facts are that the appellant had filed Suit No. 1023/61 against the respondent for perpetual injunction and also for mandatory injunction restraining him from blocking passage of 5 ft. between the house of the appellant and that of respondents and for removal of the obstruction. It was decreed by the trial Court on March 30, 1964 which was confirmed by the appellate Court on December 10, 1964. Thus, the decree of mandatory injunction to remove the obstruction and perpetual injunction restraining the respondent from blocking the passage of the appellants through the "QOADEMLP area" of the land shown in the decree of the trial Court. When the appellants had filed an application for execution under Order 21, Rule 32, C.P.C. in Execution Case No. 2903/65, the respondent had removed the obstruction and consequently, the execution case was struck out on February 25, 1966 on the finding that the passage had been cleared and obstruction was removed. That was also upheld by the appellate Court by dismissing C.A. No. 65/66 on March 6, 1967.

(3.) It is now an admitted position that subsequently a shop was constructed which is an obstruction to the passage in question and it had completely blocked the passage. The appellant, therefore, filed again an execution application under Order XXI, Rule 32 in E.C. No. 42/1967. The executing Court had directed, overruling the objections of the respondent, to remove the obstruction completely and issued injunction not to disobey the mandatory injunction. It was issued by way of attachment of the property and detention of the respondent in civil prison if only the obstruction is not removed. On appeal, the Additional District Judge by his judgment dated March 10, 1969 confirmed the same. In the execution second appeal, the learned single Judge reversed the decree and remitted the matter on the finding that under Section 22 of the Easements Act, it is required to be seen whether the obstruction has caused enjoyment of easementary right. Since that was not done, the Courts below have committed error of law in directing removal of the obstruction and also the attachment of the properties and direction to keep the respondents in civil prison.