SACHI PRASAD MUKHERJEE Vs. AMARNATH ROY CHOWDHURI

JUDGEMENT

(1.) In this suit the plaintiffs complain: (i) that the defendant by raising the north wall of his house has disobeyed a permanent injunction embodied in a decree between the parties dated September 1895; (ii) that the defendant by building a cook-shed has interfered with the plaintiffs ancient lights, (iii) that the defendant has encroached on a narrow strip of land between the two premises, which belongs to them, by building a privy on the eastern end of it.

(2.) As to (i), the plaintiffs ask for the demolition of the wall so far as it is above the height limited by the permanent injunction. The defence made is that the plaintiffs should not have brought a fresh suit but should have applied for the execution of the decree of 1895 under Order XXI, Rule 32, Clause (1) or Clause (5), and that an application for execution at the date of the suit would have been barred by limitation under Article 181 of the Schedule of the Limitation Act of 1908, corresponding with Article 178 of Schedule II of the Limitation Act of 1877.

(3.) The learned Munsif in the Trial Court upheld this plea relying upon the decision of the Madras High Court in Venkatachallam v. Veerappa (1905) I.L.R. 29 Mad. 314, which is clearly in point. In the lower Appellate Court, the learned Subordinate Judge has taken a different view. He is of opinion that Clause (5) of Rule 32 only applies to a mandatory injunction as distinguished from a prohibitory injunction, such as we have here, that the plaintiffs are entitled to enforce the injunction by suit, that the wrong done by disobeying the injunction is a continuing wrong within the meaning of Section 23 of the Limitation Act, and that the suit is within time. He has therefore made a decree awarding the relief claimed and the defendant has appealed.