NARI CHINNABBA CHETTY Vs. ECHENGALROYA CHETTY

JUDGEMENT

(1.) This second appeal is against the judgment and decree of the-District Judge, North Arcot, in A.S. No. 244 of 1946. The facts were briefly these. The appellants here had obtained a decree in O.S. No. 124 of 1942 against the respondents preventing the respondents from interfering with the appellants right of way along the pathway marked KLM in the suit plan, so that appellants, might take their cattle and ploughing materials along that pathway. These appellants put in E. A. No. 496 of 1946 in the District Munsiff's Court, Vellore, the Court which had granted the decree, alleging that the respondents had ploughed up a portion of the pathway and included it in their adjacent land, had dug a pit on the pathway, and widened the existing well making an encroachment on the pathway, and thus made it impossible for any cattle to go along the pathway with safety, and for any persons to go along the pathway without care. The learned District Munsiff gave these appellants a decree directing these respondents to-remove the obstructions within a week from 10 August, 1946, the date of his; order, failing which he allowed these appellants to rectify all the defects and obstructions in the path put up by these respondents through Court and recover costs-from these respondents, obviously acting under, Order 21, Rule 32(5), Civil Procedure Code. These respondents took the matter in appeal. The learned District Judge, relying on the rulings in Hemichandra Naskar V/s. Narendranath Basu (1933) I.L.R. 61 Cal. 148 and Angad V/s. Madho Ram I.L.R. 1938 All. 673, held that Sub-rule (5) of Rule 32 of Order 21, Civil Procedure Code, would not apply to a prohibitory injunction but only to a mandatory injunction and overruled the contention of these appellants that they would be left remediless and that the decree would become worthless, adding that there were ways and means by which the decree could be effectively enforced, but that the way prescribed in Order 21, Rule 32(5) was not the way, and allowed the appeal and dismissed the E. A. but directed all the parties to bear their own costs in his Court. Hence this second appeal.

(2.) I have perused the entire records and heard the learned Counsel on both sides. Mr. Jagadisa Aiyar, for the appellants, raised three main contentions. The first was that the lower appellate Court went wrong in relying on the rulings in Hemichandra Maskar V/s. JVarendranath Basu (1933) I.L.R. 61 Cal. 148, Anand V/s. Madho Ram I.L.R. 1938 All. 673, instead of relying on the rulings in Sachi Prasad Mukherjee V/s. Amarnath Roy Chowdhuri (19.18J I.L.R. 46 Cal. 103 and G. E. Sampath Chetty V/s. M.S. Sankara Aiyar (1930) M.W.N. 809, which two rulings allow the application of Order 21, Rule 32(5) to prohibitory injunctions also and not merely to mandatory injunctions and are preferable ones as they give the same meaning to the word " inT junctions " in Order 21, Rule 32 (1) as well as Order 21, Rule 32(5) and enable the decree- holder to enjoy the fruits of his decree free from mischief and obstruction from the judgment- debtors and will avoid the addition of words like " mandatory " before " injunction " and " prescribed in the decree " after the words " the act " in Sub-rule (5), and will also avoid the illustration given below Rule 32(5) being allowed to alter or add to the express wording of the section, contrary to the Privy Council ruling in Bengal Nagpur Railway Company V/s. Ratanji Ramji I.L.R. 1938 (2) Cal. 72 at 79. After, a careful consideration of the exhaustive arguments by Mr. Jagadisa Aiyar on this point, I am clearly of the opinion that Order 21, Rule 32(5) will have no application to the case of prohibitory injunctions, and will apply only to the case of mandatory injunctions. Sub-rule (5) has been added later on, whereas Sub-rule (1) existed before.

(3.) Sub-rule (5) runs as follows: Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree The passage, direct that the act required to be done may be done as far as practicable by the decree-holder...and upon the act being done the expenses incurred may be ascertained Shows beyond all possiblity of doubt that the act intended to be done through court is the act directed in the decree to be done, especially where we read this with the phrase " or for an injunction has not been obeyed ". Obviously, the phrase " has not been obeyed " implies disobedience of the very order of injunction prescribed in the decree and not getting round that injunction by other acts of obstructions, as here, by digging a pit, widening a well and merging the pathway etc. This shows that only a mandatory injunction is intended to be covered by Order 21, Rule 32(5).