PAUL Vs. CHEERAN NARAYANAN

JUDGEMENT

(1.) THE plaintiff-decree-holder is the appellant, and the matter arises in execution of the decree. The judgment-debtor is admittedly a kudiki-dappukaran in the plaint property belonging to the decree-holder. The decree is for permanent injunction restraining the defendant from trespassing into the decree schedule property beyond 5 koles of his kudikidappu. According to the decree-holder, the defendant in violation of the decree trespassed beyond the aforesaid 5 koles and he, therefore, filed S. A. 538 of 1963 under Order 21, Rule 32, Civil P. C. to attach the judgment-debtor's property and thereby compel him to remove the fence which he had constructed in violation of the decree. The execution Court allowed the application and directed the defendant to remove the fence. The learned Judge in appeal took a different view on the ground that since the decree is one for prohibitory injunction there is no scope for applicability of Order 21, Rule 32, Civil p. C.

(2.) THE decree passed in the suit is to the following effect: (Original in Malaya-lam script omitted ). The prayer in the execution application is to attach the judgment-debtor's property on the ground that the judgment-debtor in violation of the decree had cut and removed the branches from the trees standing on the decree schedule property beyond the 5 koles and constructed new fence in the place of the old fence in existence on the north, west and south of the property. The appellate Judge took the view relying on the decision in Joseph v. Makkarlu, AIR 1960 Ker 127 that order 21, Rule 32 (5) is not applicable to a decree allowing preventive injunction. This point was not disputed by the learned counsel for the appellant. But he contended that the application that he filed in the lower Court is under Order 21. Rule 32 (1) of the Civil P. C. which will apply to decrees granting preventive injunction as well as mandatory injunction. In Chinnabba v. Chengaloroya, AIR 1950 Mad 237 Panchapakesa Ayyar, J. said that Order 21. Rule 32 (1) is applicable to a case of prohibitory injunction also. The learned Judge pointed out: