D.K. Mahajan, J.
1. This Letters Patent Appeal is directed against the decision of the learned Single Judge of this Court. The short question that requires determination in this appeal is whether a decree for a prohibitory injunction can be executed in the manner laid down in Order 21, Rule 32 (5) of the Code of Civil Procedure.
2. Nawal Kishore, decree-holder, obtained a decree for injunction restraining the judgment-debtors from preventing him in putting a separating wall in the residential premises so as to separate his portion from the one in possession of the judgment-debtors. This decree was obtained on the 13th of November, 1953. The plan shows where the separating wall is to be built. On the 27th of July, 1954, the present application was filed for execution of the decree as provided under Order 21, Rule 52 (5).
This application was objected to by the judgment-debtors on a number of grounds. The only ground with which we are concerned in the present appeal was to the effect that the decree being one for a prohibitory injunction it could only be executed as provided in Order 21, Rule 32, Sub- Rule (1) and not as provided in Sub-rule (5) of Rule 32, Order 21, This objection was overruled by the executing Court as well as by the appellate Court and by the learned Single Judge. The learned Single Judge, while dealing with this objection Ruled as under:
'On the other hand in the present case the injunction was not sought to prevent the defendants from doing something positive, but to prevent them from interfering with the plaintiff's pursuing a certain course of action, namely constructing a wall on his part of the premises. In other words the prohibitory order is a sort of double negative which amounts to a positive and in effect the decree is a mandatory decree ordering the defendants to allow the plaintiff to do something with his own properly.'
This would show that the decree in question was held to be a decree for mandatory injunction instead of its being a decree for prohibitory injunction. The learned Single Judge also had recourse to the provisions of Section 51, Clause (e) of the Code of Civil Procedure and observed as under:
'In the circumstances of the present case it seems to me that the only effective way of enabling the plaintiff to give effect to the decree which stands in his favour is on the lines adopted by the Courts below, namely to allow the plaintiff to erect the wall under the supervision of a person appointed to represent the Court and see that the defendants do not interfere. It seems to me to be contrary to all principles of justice that any plaintiff should be left in the possession of a decree in which has legitimate rights are asserted without giving any effective means of carrying out the purpose for which the decree was obtained.'
3. The order of the Courts belows entitling the decree-holder to recover cost of building the wall from the judgment-debtors was, however, vacated. Considering himself aggrieved by the order of the Single Judge, on leave being granted under Clause (10), the present appeal has been preferred by one of the judgment-debtors.
4. So far as the legal position is concerned it seems to be fairly settled. It has been Ruled by various High Courts that a decree for a prohibitory injunction cannot be executed as provided for in Order 21, Rule 32 (5) and the mode of execution for such a decree is the one laid down in Sub-rule (1) of that Rule. At this stage it will be proper to set out the decree which is sought to be executed. The relevant portion of the decree is as under;
'The plaintiff is granted a decree for injunction restraining the defendants from preventing the plaintiff putting up a separating wall so as to exclude his portion shown red from that of the defendant shown blue in the plan attached to the plaint but the outer-most edge of the separating wall shall not extend XY over any portion of the defendants shown blue.'
It will be apparent from this decree that it declares that the plaintiff has a right to build the wall on the portion marked red in the plan and It prohibits the judgment-debtors from interfering with the construction of the wall. Thus, so far as the judgment-debtors are concerned the decree merely injuncts them from not interfering with the building of the wall. In other words, the injunction is merely prohibitory and not mandatory.
5. Before dealing with the true legal position and the various authorities on the subject it will be proper at this stage to set out the relevant provisions of the statute. Section 51 is in these terms:
'Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree--
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.* * * * '
The relevant part of Order 21, Rule 32 is in these terms:
'(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.
(2) * * * *(3) * * * *(4) * * * *(5) 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.'
6. It is argued on the basis of the aforesaid provisions that mandatory injunction can be executed in the manner provided in Sub-rules (1) and (5) of Rule 32, Order 21. This argument is correct and on its basis it is urged that a fortiori the same Rule will apply to a prohibitory injunction as well inasmuch as no distinction is made in Sub-rules (1) and (5) between directory or the mandatory injunction. It only speaks of an 'injunction' and that would cover both a prohibitory as well as a mandatory injunction.
I am unable to agree with this contention. Sub-rule (5) requires an act which is ordered to be done by the decree for injunction by the decree-holder or some other person appointed by the Court at the cost of the judgment-debtor. The implication being, that it is the judgment-debtor who is required to do the act and on his failure to do the act that act is to be done by the decree-holder or by some other person appointed by the Court.
In the instant case there is no mandate whereby the judgment-debtor is required to build the wall. He is merely required not to interfere with the building of the wall by the decree-holder. Therefore, in terms, Sub-rule (5) will not apply. Moreover there is a catena of authority for the proposition that Sub-rule (5) has no application to the execution of a prohibitory injunction. Reference may be made to (1) Toon Lal v. Sonoo Lall, AIR 1938 Pat 522; (2) Chinnabba Chetty v. Chengalroya Chetty, AIR 1950 Mad 237; (3) Ajabrao Domajee v. Atmaram Sadasheorao, AIR 1954 Nag 245; (4) Hem Chandra v. Narendra Nath, AIR 1934 Cal 402; and (5) Chiranji Lal v. Behari, AIR 1958 All 326.
I am in respectful agreement with the Rule laid down in the aforesaid decisions. No authority to the contrary has been cited. So it seems obvious that the principle is well settled that provisions of Sub-rule (5) of Rule 32, Order 21 of the Code of Civil Procedure, have no application to the case of an execution of a prohibitory injunction. It seems that the learned Single Judge also realised the force of this argument and that is why he was driven to the conclusion that the injunction in question, the execution of which was sought, was a double negative thereby it became a positive and thus a mandatory injunction.
I am unable to construe the injunction in this manner. The injunction merely prohibits the judgment-debtor from interfering with the erection of the wall by the decree-holder. It nowhere enjoins on the decree-holder to erect the wall. The decree-holder may or may not erect the wall and if he does not erect the wall there can be no question of his being guilty of the disobedience of the injunction. Therefore, with utmost respect to the learned Single Judge, I am unable to agree that the injunction in the present case can be construed to be a mandatory injunction. It is only a prohibitory injunction and as such it is outside the ambit of Sub-rule (5).
7. This brings me to the question whether Section 51 Clause (e) of the Code of Civil Procedure will save the execution application. The argument of the learned counsel for the respondent is that the order passed by the executing Court and maintained by the learned Single Judge to the effect that the wall be constructed under the supervision of the Commissioner is valid and can be upheld under Clause (e) of Section 51. It cannot be disputed that Clause (e) is the residuary clause and would come into play only when the decree cannot be executed in any of the modes provided in Clauses (a) to (d).
But in the present case there is a mode provided for the execution of the decree, that mode being by attachment of the judgment-debtor's property and by its sale or by his detention in the civil prison for disobedience of the injunction, vide Order 21, Rule 32 (1). Therefore, resort cannot be had to Clause (e) of Section 51. In Anandi Lal v. Ram Sarup, AIR 1936 All 495, the scope of Section 51 was considered by a Full Bench presided over by the Chief Justice Sulaiman and it was observed by the learned Chief Justice at page 502:
'So far as Section 51 is concerned it does not apply to the present case, because we are not dealing with the matter in any execution proceeding. Nevertheless it may be pointed out that all that the section does is to enumerate in general terms the various modes in which the Court may in its discretion order the execution of the decree according as the nature of the relief granted may require. The legislature has taken care to pre-face the section with the words 'subject to such conditions and limitations as may be prescribed.' It is obvious that there is no wide and unrestricted jurisdiction to order execution in every case in all the ways indicated therein. The jurisdiction has to be exercised subject to such conditions and limitations as may be prescribed by the Rules in the following schedule. Thus even Section 51 would be governed by Order 40, Rule 1. No one could suggest that where a decree orders the sale of a Particular property, the executing Court could direct its delivery specifically, Or direct the arrest or detention of the defendant in person. Obviously all the various modes mentioned in Section 51 are not open to an executing Court in every case; it is to be guided by the procedure laid down in the schedule, and must resort to the method appropriate to each case.'
I see no reason to depart from the view enunciated by the learned Chief Justice and I am therefore of the view that the argument based on the provisions of Section 51(e) is of no avail to the respondent.
8. The last argument urged by the learned counsel for the respondent was that the decree would be useless unless it is executed as provided by Order 21, Rule 32 (5). This argument really begs the question. The decree in this case cannot be said to be useless. It can be executed and the mode of execution is to be found in Order 21, Rule 32(1) of the Code of Civil Procedure. Merely because another mode of execution is sought and is not available will not render the decree useless.
9. After giving the matter my careful consideration I am of the view that the Courts below have taken an erroneous view of the matter. The injunction being a prohibitory injunction it can only be executed as provided in Order 21, Rule 32 (1) and not as provided in Order 21, Rule 32 (5). It will be open to the decree-holder to have recourse to the proper provision of law and execute his decree in accordance therewith. So far as the present application for execution is concerned it must fail on the short ground that no direction for execution can issue as provided in Sub-rule (5) of Rule 32, Order 21 of the Code of Civil Procedure. I accordingly allow this appeal, set aside the judgments of the Courts below and dismiss the execution application. In the circumstances of the case, however, the parties will be left to bear their own costs throughout.
S.S. Dulat, J.
10. I agree.