Panchapakesa Ayyar, J.
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 Munsif'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 Munsif gave these appellants a decree directing these respondents to remove the obstructions within a week from 10th 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 P. C. These respondents took the matter in appeal. The learned District Judge, relying on the rulings in Hemichandra Naskar v. Narendranath Basu : AIR1934Cal402 and Angad v. Madhoram : AIR1938All416 held that Sub-rule (5) of Rule 32 of Order 21, Civil P. C., 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 Naskar v. Narendranath Basu : AIR1934Cal402 , Anand v. Madhoram : AIR1938All416 instead of relying on the rulings in Sachi Prasad v. Amarnath Roy, 46 Cal. 103 : A. I. R. 1919 Cal. 674 and G. E. Sampath Chetti v. 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 'injunctions' 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 R. 32 (5) being allowed to alter or add to the express wording of the section, contrary to the Privy Council ruling in B. N. Rly. Co. Ltd. v. Ratanji Ramji . 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.'
'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 possibility 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 82 (5).
4. Mr. Jagadisa Iyer's objection that two different constructions cannot be given to the same word 'injunction' in (1) and (5), though sustainable generally, will not apply to this case where the wording of Sub-rule (5) clearly shows that that sub-rule could only be applied to the case of mandatory injunctions. As already stated, Sub-rule (5) was added later on whereas Sub-rule (1) existed already, and sub-rule (1), admittedly, covers both prohibitory and mandatory injunction. There is nothing peculiar in the added Sub-rule (5) referring only to mandatory injunctions.
5. The second objection of Mr. Jagadisa Aiyar was that, by not applying Sub-rule (5) to such cases, the decree-holder holding only a decree for prohibitory injunction will be deprived of the fruits of his decree, and injustice will be done, and the judgment-debtor encouraged to harass the decree-holder, and that, therefore, as the policy of the law is to enable the decree-holders to enjoy the fruits of their decree, I must hold that Sub-rule (5) will apply to prohibitory injunctions also. The argument is unsustainable. The decree-holder in the case of a prohibitory injunction has not only got a right of suit in such a case, in order to get a mandatory injunction for the removal of the obstructions etc., but has also the easier remedy under Order 21, Rule 32 (1). He can ask for the detention of the judgment-debtor in the civil prison, or the attachment of his property or both, and a Court can order either or both of these things to be done in case the judgment-debtor will not remove the obstruction on the path preventing the decree-holder from using the path, within a time prescribed by it. Such an order of Court will be normally quite effective and will enable the decree-holder to enjoy the fruits of his decree. Mr. Jagadisa Iyer says that in some cases of prohibitory injunction the judgment debtors may be persons who have no property to be attached and who would cheerfully go to jail also. There is no need to consider such hypothetical cases. There is nothing on record to show that the judgment-debtors in this case are persons without property to be attached, or are desperadoes willing to go to the civil jail and eat the bread of idleness at the decree-holder's expense. Even if that is so, and the decree-holders will suffer injustice by not being able to achieve their object by invoking the provisions of Sub-rule (1), they can file a suit for a mandatory injunction. If that suit too, for some reason, fails, and the injustice still remains, that cannot be helped. In all civilised countries, it is recognised that, despite the best of laws, a residum of injustice will sometimes remain. The best of laws can only mitigate injustice and not eradicate it altogether in all cases. Thus, if a husband, who is a gazetted officer and has no other property resigns his job and remains unemployed in order to spite his wife who sues him for maintenance, the wife will certainly suffer injustice by getting a far lesser maintenance than she would otherwise get, and the Courts will be powerless to rectify that residum of injustice. So too, no Court, in modern times, in a civilised country, will compel a husband or wife to have actual conjugal relations with the partner, in pursuance of a decree for restitution of conjugal rights, and, often, no amount of other remedies will be a sufficient or satisfactory substitute for conjugal rights. But that residum of injustice also cannot be rectified by Courts.
6. The third objection of Mr. Jagadisa Aiyar is that the ruling in Hemichandra Naskar v. Narendranath Basu : AIR1934Cal402 relied largely on the illustration given in Sub-rule (5) overlooking the fact that only one illustration was given, and that too to cover a case of mandatory injunction, and that there is nothing said in the Sub-rule about its non-applicability to prohibitory injunctions, and that the Privy Council in B. N. Rly. Co., Ltd. v. Ratanji Ramji has clearly held that the illustration cannot have the effect of modifying the language of the section which alone forms the enactment. I cannot agree with the contention. The Privy Council ruling has no application to this case as the illustration had not modified but only exemplified the meaning of Sub-rule (5), as I construe it. The ruling in G. E. Sampathu Chetty v. M. S, Sankara Iyer, 1930 M. W. N. 809, does not specifically say that Sub-rule (5) will apply also to cases of prohibitory injunctions though undoubtedly there is some ambiguity, the result of the facts not being clearly stated, evidently because it was not necessary for deciding that case. It is obvious that if a party in a case has agreed not to erect a wall more than 30 feet, and that any wall erected by him above that height may be demolished, to bring it to that height, the Court will have an undoubted power, under Sub-rule (5), to demolish the excess wall and to bring the wall to the requisite height. That, I take it, is the real rationale of the decision in that case. It will not, therefore, help Mr. Jagadisa Aiyar's contention.
7. No doubt, Richardson J. in Sachi Prasad Mukherjee v. Amarnath Roy Chowduri, 46 Cal. 108: A.I.R. 1919 Cal. 674 held that Sub-rule (1) and (5) would clearly apply to injunctions both prohibitory and mandatory, and that the act required to be done mentioned in Sub-rule (5) means 'the act which has to be done to enforce the injunctions'. But even his brother on the Bench, Beachcroft J., did not agree with that proposition, and said that he expressed no opinion as to whether Sub-rule (5) would apply to prohibitory injunctions. A later Bench of the Calcutta High Court in Hemichandra Naskar v. Narendranath Basu : AIR1934Cal402 , has expressly dissented from the view of Richardson J. and held that Sub-rule (5) would not apply to prohibitory injunctions. A Bench of the Allahabad High Court has also adopted the same view in Angad v. Madhoram : AIR1938All416 as the later Calcutta view. The same view has been adopted by a Bench of the Patna High Court in Toonlal V. Sonoolal, : AIR1938Pat522 . The alleged decision in G. E. Sampath Chetti v. M. S. Sankara Iyer, 1930 M. W. N. 809 is, as already stated, not a decision on that point, and I have no doubt that Sub-rule (5) by its wording, clearly excludes the possibility of its being applied to prohibitory injunctions. I agree, therefore, with the Bench rulings of the Allahabad, Calcutta and Patna High Courts referred to above and hold that Sub-rule. (5) will not apply to this case which is a case of prohibitory injunction.
8. Then Mr. Jagadisa Aiyar requested that I should at least convert the petition into a suit, as is allowed under the ruling in Angad v. Madhoram : AIR1938All416 and said that he would pay the necessary court-fee. In the circumstances of this case, I see no reason to grant this prayer. The obstructions are still existing on the path, and will give these appellants a cause of action for a suit for a mandatory injunction to remove them even without my converting this old application into a suit. Wherever the circumstances do not require such extraordinary translations of applications into suits, those things will not be done, and the parties will be left to pursue their ordinary independent remedies.
9. In the end, therefore, the second appeal deserves to be, and is hereby, dismissed, but, in the circumstances, without costs, since the judgment-debtors have not proved that they have not put up obstructions and effectively prevented the decree-holders from enjoying the right of pathway, and since I have disallowed the appellants' request to convert the application into a suit. Leave refused.