K.S. Venkataraman, J.
1. This Second Appeal has been filed by one Nallammal and arises out of proceedings (E.P.No. 1830 of 1964) taken in execution of a decree in O.S. No. 354 of 1940 on the file of the District Munsif, Erode. The decree restrained Nallammal, who was judgment-debtor 3 in the suit, and the other judgment-debtors by a permanent injunction 'from throwing rubbish or heaping mud, building-stones or other materials to the south of the gateway marked G in Exhibit 11 (e), and in any manner obstructing the access of the plaintiffs to their houses from the Local Fund Road leading to Bhavani through such gateway'. Put in plain terms, the decree directed that the judgment-debtors should not obstruct the access of the plaintiffs to their houses from the Local Fund Road leading to Bhavani through the gateway marked G in the Commissioner's plan marked as Exhibit II (e), in the suit and attached to the decree.
2. The plaintiffs filed an execution petition E.P. No. 1830 of 1964 alleging that contrary to the injunction granted by the decree, the judgment-debtors and, in particular, the appellant were obstructing their access to the house by putting up a cross wall.
3. The appellant in her counter contended that it was not permissible for the decree-holders to invoke a decree which was passed so long ago as in 1941, and that the execution petition was filed only because of recent enmity. She further relied on the fact in putting up the construction she had secured the permission of the Panchayat Board and that the decree-holders had not objected during the construction.
4. An ex parte commission was issued at the instance of the decree-holders and he filed a report Exhibit A-1 with a sketch Exhibit A-2 stating that a building had been recently put up by Nallammal as indicated in the sketch Exhibit A-2 and that it was in violation of the decree. He reports that a shed has been newly put up marked with blue boundaries in the plan Exhibit A-2 and with an opening indicated by the letter G. He states that that place G where there is an entrance to the newly put up shed would correspond to the gateway referred to as G in the plan Exhibit II (e), attached to the decree.
5. In the enquiry before the executing Court (learned Munsif) objection was initially taken by Nallammal's Counsel to the report of he Commissioner on the ground that it was ex parte. The learned District Munsif gave an opportunity to Nallammal to have a commission issued again, but the opportunity was not availed of. As a matter of fact, it will be seen from the report of the Commissioner that Nallammal was herself present before the present Commissioner and went to the extent of showing to the Commissioner an alternative way of ingress and egress for the plaintiffs.
6. The learned District Munsif accepted the report of the Commissioner and held that there had been violation of the decree. He gave her 10 days' time to remove the obstruction and directed that if she failed to do so, her detention in civil prison would be ordered under Order 21, Rule 32. He also directed that if she did not remove the obstruction within 10 days, it would be open to the petitioners (decree-holders) to file a separate application to have the obstruction removed through Court at the cost of Nallammal. In giving this direction he purported to follow Order 21, Rule 32 (5). Before proceeding further it will be useful to quote the relevant portion of Order 21, Rule 32 (1) and (5):
Rule 32 (1) : Where the party against whom a decree ....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 an injunction by his detention in civil prison, or by the attachment of his property or by both,'
'Rule 32 (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.
7. Nallammal preferred an appeal to the learned Subordinate Judge. The learned Subordinate Judge agreed with the learned District Munsif and held that in violation of the decree for injunction Nallammal had put up a shed. He therefore upheld the portion of the learned District Munsif's order that if she failed to remove the obstructions within a period of 10 days, she would be detained in civil prison. But the learned Subordinate Judge pointed out that the learned District Munsif was in error in giving opportunity to the decree-holder to file a separate application to have the obstruction removed at the cost of Nallammal. Following the decision of Panchapakesa Ayyar, J., in Chinnabba Chetty v. Chengairoya Chetty I.L.R. : (1949)2MLJ705 . the learned Subordinate Judge pointed out that though Sub-rule (1) of Rule 32 would cover both prohibitiory and mandatory injunctions, Sub-rule (5) would apply only to a mandatory injunction because it speaks of the act required to be done which means a positive act required by the decree to be done by the judgment-debtor. It would not apply to a prohibitory injunction restraining the judgment-debtor from interfering with the plaintiffs' right of way. It was not as if; the decree-holder would be without a remedy because detention in the civil prison or the attachment of the property of the judgment-debtor which could be had under Sub-rule (1) would in normal cases be effective, but if it proved to be ineffective, the decree-holder would have to file a fresh suit for removal of the obstruction. To that extent the learned Subordinate Judge allowed the appeal of Nallammal.
8. Nallammal has preferred the second appeal in so far as the learned Subordinate Judge has held that there was a violation of the injunction. The decree-holders have preferred a memorandum of cross-objections in so far as the learned Subordinate Judge modified the directions of the learned District Munsif.
9. The main contention of Sri V.S. Subramaniam, learned Counsel for the judgment-debtor Nallammal, is that there has not been a clear localisation of the point described as G in the plan attached to the decree. He accordingly prays that a commission may be issued once again to have the localisation. He submits that if the Commissioner and the Court clearly indicate to the appellant which portion of the building put up by her has to be removed, she would be prepared to comply with the decree. Learned Counsel submits that Nallammal is over 70 years and need not be sent to prison.
10. On a prior occasion learned Counsel took time to see if the decree-holders could be persuaded to have an alternative right of way. But the attempt has failed. I have therefore to dispose of the matter on the materials on record. I find that the Commissioner has localised the gateway G described in the decree and in the plan attached to the decree. I have satisfied myself about the correctness of this localisation by comparing the plan Exhibit A-2 with the plan attached to the decree. Broadly speaking, there is a triangular bit east of the verandah of the plaintiff's house. The point G is the southern boundary of the triangular bit in Exhibit A-2, and it is also in the southern boundary of the plan attached to the decree, the only difference being that in the plan attached to the decree that boundary has a slight inclination to the north. In other words, while the southern boundary in Exhibit A-2, seems to run east to west the southern boundary in the plan attached to the decree seems to run in the direction of west south-west to east north-east. The difference is slight and it is clear that there has been a violation of the decree for injunction. It has also been observed that though an opportunity was given by the learned District Munsif to Nallammal to have the Commission issued again, she did not avail herself of it. It does not appear that before the learned Subordinate Judge either she put forth any such request. It is too late to entertain the request at the stage of second appeal. The second appeal has necessarily got to be dismissed. This however will not prevent Nallammal from persuading the decree-holders to accept satisfaction of the decree by limiting the demolition of the new construction to the extent required to allow the passage to the decree-holders.
11. Regarding the cross-objections, the decision of Panchapakesa Ayyar, J., is clear. That has been quoted with approval by Viswanatha Sastry, J., in Ramabrahma Sastri v. Lakshminarasimham (1956) A.W.R. 578 : A.I.R. 1957 Andh. Pra. 44, and also in Mulla's Commentary to the Code of Civil Procedure. There are several decisions taking the same view. I agree with Panchapakesa Ayyar, J., that Sampath Chetty v. Sankara Iyer (1930) M.W.N. 809, cannot be considered to have expressly decided the point because in that case the execution petition had been dismissed in limine by the lower Court and the judgment of this Court set aside that order and remanded the case for disposal on merits. It was therefore not necessary to decide this express point at that stage, particularly when the reliefs under Sub-rule (1) had also to be resorted to.
12. The appeal and the cross-objections are accordingly dismissed. No costs. The appellant will be given one month's time from now to obey the decree.
13. No leave.