HEM CHANDRA NASKAR Vs. NARENDRA NATH BOSE

JUDGEMENT

(1.) The facts which have given rise to this appeal are quite simple and the question which falls for determination therein is equally so. The two parties are owners of lands on opposite sides of a river called Sumed Giri. In 1923 the appellants and others, as plaintiffs, sued the respondents, alleging that the latter had made openings at 31 places in the bund on the western bank of the river in order to convert their cultivable-lands into fisheries and had thereby caused injury to the fisheries which the plaintiffs had from a long time before on the opposite bank. The substantial prayers-in the plaint were the following: (Ka) a declaration in favour of the plaintiffs-affirming their right and negativing the right of the defendants to take water from the river; (kha) a mandatory injunction, on the defendants to close the 31 openings-they had made; and (ga) a permanent injunction against the defendants restraining them from diverting the water and so the fish on to their lands. The suit ended in a compromise which was embodied in a petition, in which it was prayed that a decree in accordance with its terms might be passed. The decree that was passed purported to be on the basis of the terms contained in the petition, and made the petition a part of it. By this petition the parties agreed that out of the 31 passages only eight which were specified should be retained. It was further provided: Besides the said eight boat passages the additional boat passages and water passages excavated by the Basu defendants from the river Sumed Giri shall be closed by them within 15 days from the date of this Solenema. If they fail to do so, the plaintiff will be competent to have them closed on the strength of this Sole- nama decree with the help of the Court. Save and except the said eight boat passages they will not be competent to open any boat passage or water passage or draw water by any other means from the river Sumed Giri.

(2.) It is the decree-holders case that the openings with the exception of the eight that were to be maintained were closed by the judgment-debtors, but that of late the latter have again opened some 30 passages in the place of the eight. They accordingly applied to have the openings in excess of the eight closed by execution of the decree. They prayed: The said judgment-debtors having opened about SO Water passages in place of eight they are bound to close all the remaining water passages keeping eight of them. As the judgment-debtors have not done so, it is prayed that a Nazir may be deputed by the Court to have all the water passages over and above the eight in respect of the jalkars belonging to the defendants which lie on the west side of the river Sumed Giri and within the boundaries given in the schedule below filled up with earth, and that all costs in respect thereof as well as for execution may be realized from the defendants.

(3.) Amongst the objections that were taken to the execution of the decree the one that concerns us at this stage is the objection that the decree is not executable in the manner prayed for as it was not a decree for an injunction, but a decree embodying a contract between the parties and that, to the extent that it did so, it was but a declaratory one. The Subordinate Judge overruled this objection. He held: It was urged that a decree for a permanent injunction could only be passed in Forms Nos. 14 to 16 in the Appendix to the First Schedule of the Civil P. C. relating to decrees. It is no doubt true that the compromise decree in this case has not been passed in any of the forms indicated in Appendix D, but I do not think that mere omission on the part of the Court to pass the decree in one of the above mentioned forms is at all sufficient for holding that the decree passed in Suit No. 178 of 1923 on compromise is not a decree for a perpetual injunction when I am fully satisfied from a perusal of the plaint and the decree that it is really a decree for a perpetual injunction. In construing the decree we must look to the substance and not the form of the decree. For the reasons stated above I have no hesitation in holding that the decree passed in Suit No. 178 of 1923 was a decree for a permanent injunction. In this view of the case the decree-holders are perfectly entitled to execute the decree in the manner prayed for under Clause 5, Rule 32, 0. 21, Civil P. C.