NANU Vs. AMMALUKUTTY AMMA

JUDGEMENT

(1.) This Second Appeal arises out of an application, made by the respondent on

(2.) The pathway in question runs through the 1st defendants land. The appellant is the son and legal representative of the 1st defendant and it is no longer in dispute that, in or about March 1960, he put up a structure in his land obstructing the pathway. It is for the removal of this structure under O.21 R.32 (5) of the Code that the respondent (who was the 4th plaintiff in the suit) brought the present application for execution. That application has been allowed by the courts below and hence this Second Appeal.

(3.) The courts below upheld the contention of the respondent that the decree embodied a mandatory injunction requiring the 1st defendant not merely to clear the pathway of all obstructions then existing but to keep it clear of obstruction for all time. The contention of the appellant here as well as in the first court has been that the only injunction in the decree is for the removal of the trees then existing on the pathway and that for the rest the decree is only a declaratory decree. There is nothing enjoined on the 1st defendant after the removal of the obstructions then existing; and hence there is nothing in the decree that can be executed against the obstruction now made. In the lower appellate court, however, the appellant took a slightly different position and his case there was that while there was a mandatory injunction for the removal of the trees then existing on the pathway, the decree in so far as it related to the future was only a prohibitory injunction restraining the 1st defendant from causing any new obstruction to the pathway and that such a decree could not be executed under O.21 R.32(5) so as to effect the removal of any obstruction since made in disobedience of the decree.