G. Ramanujam, J.
1. The appellants herein are challenging the validity of the orders passed in execution of the decree in E.P. No. 443 of 1975 in O.S. No. 1222 of 1972. respondents herein have obtained a decree for declaration of their right to use of road called 'Colony Road' and for permanent injunction restraining the appellants from interfering with the use of the road by them in the said suit. The said decree was challenged in appeal by the appellants; but without success. There was a further appeal to this Court in S.A. No 538 of 1975. Pending the second appeal, there was stay of the execution of the decree which was later vacated at the instance of the respondents. The respondents, decree-holders, thereafter filed E.P. No. 443 of 1975 complaining that the appellants have disobeyed the decree for injunction, and seeking the appointment of a Commissioner for removing the thorny shrubs that were grown, in the pathway and for arresting of the judgment-debtors for the disobedience of the injunction, The executing Court, however, did not direct arrest of the judgment-debtors for disobedience of the decree for injunction, but appointed a Commissioner for removing the thorny bushes to have easy access in the pathway in respect of which they have obtained a decree. The order passed by the executing Court was challenged by the appellants by filing an appeal to the lower Appellate Court. The lower Appellate Court has also upheld the order of the executing Court.
2. In this appeal, the learned Counsel for the appellants, judgment-debtors, contends that Order 21, Rule 32, Sub-rule (5) of the Code of Civil Procedure can legally be invoked only in cases where there is disobedience of a mandatory injunction and that it cannot at all be used in respect of a decree for prohibitory injunction. According to the learned Counsel for the appellants, the decree passed against the appellants merely declares the right of the respondents to use the pathway and restrains the appellants, their agents and their men from interfering with their right of pathway and the decree is not in a mandatory form directing the judgment-debtors to do any positive act such as cutting the thorny shrubs found on the pathway. It is stated that it is only if such a mandatory injunction is contained in the decree, action can be taken against the judgment-debtors under Order 21, Rule 32, Sub-Rule (5) of the Code.
3. The learned Counsel is right in his submission that the decree in this case is not in a mandatory form and that the judgment-debtors are not under a liability to do any positive act. The learned Counsel is also right in his submission that Order 21, Rule 32(5) of the Code can be invoked when there is disobedience of a positive mandate given, by the executing Court. The learned Counsel refers to the following decisions in support of his stand: Chinnabba v. Chengalvaroya : AIR1950Mad237 ; Murari Lal v. Kishore and Nallammal v. Marimuthu Boyan : (1969)2MLJ482 .
4. All these cases lay down a well established principle that while the machinery and remedy provided under Order 21, Rule 32(1) of the Code of Civil Procedure would cover cases of both prohibitory and mandatory injunctions, Sub-rule (5) of that rule will apply only to cases of mandatory injunction because it speaks of a positive act to be done by the judgment-debtor under the decree and that wherever there is no mandatory in junction directing the judgment-debtor to do a positive act, the remedy open to the decree-holder is to file a fresh suit seeking mandatory injunction. But I do not see how the order passed in. this case by the executing Court is contrary to the well established principles laid down in the above decisions.
5. In this case, there is a decree declaring the respondents' right to use the pathway and an injunction restraining the appellants from interfering with such right. When the respondents, decree-holders, found that the pathway is so covered with thorny lushes that the right of pathway declared in their favour could not be Properly exercised, normally they are entitled to clear the thorny shrubs for facilitating their use of the pathway. But when it was found that the appellants, judgment-debtors, resisted that attempt of the respondents, decree-holders, in clearing the thorny shrubs found on the pathway, naturally they have to approach the executing Court complaining that the judgment-debtors who have teen restrained from interfering with the user of the pathway by the, decree-holder are obstructing the clearance of the thorny shrubs and therefore they have virtually disobeyed the orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the Code is not invoked by the decree-holders on the ground that the appellants as judgment-debtors have not performed any positive act directed by the Court but that they are preventing the clearance of the shrubs by the decree-holders for the proper use of the pathway. Such interference with the clearance of the thorny shrubs will amount to an indirect attempt on the part of the judgment-debtors to interfere with the plaintiffs' user of the pathway. If, in fact, the judgment-debtors, have not obstructed or prevented the clearance of the shrubs by the decree-holders, they would not have approached the executing Court for the appointment of a Commissioner to clear the thorny shrubs. I an not, therefore, inclined to agree with the learned Counsel for the appellants that the application filed under Order 21, Rule 32(1) and (5) by the respondents in this case is not maintainable.
6. The learned Counsel for the appellants pointed out that it is unnecessary to clear all the shrubs found on the pathway and that even without the clearance of the shrubs, the respondents can use the pathway. Here again, unless the existence of the shrubs is found to be an obstruction, the respondents would not have approached the executing Court for the clearance of those thorny shrubs. Of course, it is not necessary to clear all the shrubs on the road and the clearance should be confined to the extent which is absolutely necessary for facilitating the usage of the pathway both by the decree-holders and others. I find the executing Court has itself stated that the appellants herein are bound to cut and remove the over hanging bushes in the suit road whenever it is necessary and restore the road to its original position to enable the respondents herein to use that road as they were using it before. Therefore, it can be expected that the Commissioner appointed by the executing Court will cut only such of those shrubs and overhanging bushes which are actually obstructing the pathway.
7. The learned Counsel for the appellants submits that the appellants have some objection to the person who has been appointed as the Commissioner by the executing Court as they apprehend that the Commissioner may not act fairly to them. Having regard to the apprehension, expressed by the appellants, I direct the executing Court to appoint some other Advocate Commissioner for the purpose.
8. With the above observation, this C.M.S.A. is dismissed. No order as to costs.