1. In this suit the plaintiffs complain:
(i) that the defendant by raising the north wall of his house has disobeyed a permanent injunction embodied in a decree between the parties dated September 1895;
(ii) that the defendant by building a cook-shed has interfered with the plaintiffs' ancient lights,
(iii) that the defendant has encroached on a narrow strip of land between the two premises, which belongs to them, by building a privy on the eastern end of it.
2. As to (i), the plaintiffs ask for the demolition of the wall so far as it is above the height limited by the permanent injunction. The defence made is that the plaintiffs should not have brought a fresh suit but should have applied for the execution of the decree of 1895 under Order XXI, Rule 32, Clause (1) or Clause (5), and that an application for execution at the date of the suit would have been barred by limitation under Article 181 of the Schedule of the Limitation Act of 1908, corresponding with Article 178 of Schedule II of the Limitation Act of 1877.
3. The learned Munsif in the Trial Court upheld this plea relying upon the decision of the Madras High Court in Venkatachallam v. Veerappa (1905) I.L.R. 29 Mad. 314, which is clearly in point. In the lower Appellate Court, the learned Subordinate Judge has taken a different view. He is of opinion that Clause (5) of Rule 32 only applies to a mandatory injunction as distinguished from a prohibitory injunction, such as we have here, that the plaintiffs are entitled to enforce the injunction by suit, that the wrong done by disobeying the injunction is a continuing wrong within the meaning of Section 23 of the Limitation Act, and that the suit is within time. He has therefore made a decree awarding the relief claimed and the defendant has appealed.
4. I agree in the result, with the Munsif. Clause (5) of Rule 32 is a new provision. It supplies a gap in the Code of 1882 to which attention was drawn by the cases of Saharlal v. Bai Parvatibai (1901) I.L.R. 26 Bom. 283, and Durga Das v. Dewraj (1905) I.L.R. 33 Calc. 306. These cases and others illustrate the practice, and the practice is in accordance with the Code. Rule 32 gives a remedy by execution and the enforcement of an injunction being a question relating to the execution, discharge or satisfaction of the decree by which it is awarded, a separate suit is prohibited by Section 47 [of. Jamsetji v. Hari Dayal (1907) I.L.R. 32 Bom. 181.]
5. Clause (1) of Rule 32 clearly applies to injunctions both mandatory and prohibitory. In the present Code the words 'for an injunction' take the place in the old Code of the words 'for the performance or abstention from any other particular act.' I can see no reason why Clause (5) should be limited to mandatory injunctions. The clause gives a discretionary power to the Court to 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 decree-holder.' The expression 'the act required to be done' means what has to be done to enforce the injunction. In the present case it is the part demolition of the defendant's wall. In my opinion on an application for execution of the decree of 1895, the Court might have proceeded either under Clause (1) or Clause (5).
6. The question of limitation, if it were necessary to decide it, is perhaps more difficult. It is contended for the plaintiffs that if the suit in respect of this wall is not competent, they are entitled under Clause (2) of Section 47 of the Code to ask that the suit may be treated us an application, that if Article 181 applies that Article is governed by Section 23 and that on this footing the suit or application is in time.
7. The answer seems to be that assuming that a suit upon a decree which has never been carried into the execution department at all, can be treated under Clause (2) as an application to execute that decree, nevertheless the power given by the clause is a discretionary power and the present case is not one in which it ought to be exercised. The flaw in the plaintiffs' procedure was pointed out by the Munsif but nothing has since been done to put the case on a proper footing. If the concessions were allowed the plaint would have to be regarded as partly a plaint and partly an application for execution. The plaintiffs, moreover, appear to have been very dilatory in asserting their rights.
8. It may be well, however, to add as to Article 181, that the view of the Madras High Court that under that Article, an application to enforce an injunction must be made within three years of the particular breach or disobedience which is the occasion for the application, differs somewhat from the view taken by the Allahabad High Court. In Ram Saran v. Chatar Singh (1901) I.L.R. 23 All. 465, the learned Judges observe that disobedience of an injunction is a contempt of Court. They hold that an application to enforce the injunction is not governed by Article 179 (now Article 182) and apparently that no period of limitation is prescribed, but make no reference to Article 178 (now Article 181). This case was followed in Bhagwan v. Sukhdei (1905) I.L.R. 28. All. 300. Both Courts, it will be observed, agree that the terms of Article 178 put it out of the question. For the present purpose, the subject need not be further discussed.
9. In my opinion, (i) in regard to the wall of the house, the decree of the Subordinate Judge should be discharged and the decree of the Munsif restored.
(ii) As to the cook-shed, it was conceded in the argument before us that the decree of 1895 does not affect it. The cook-shed appears to be a new building and its north wall is to the south of the line of the north wall of the house produced westwards. The Subordinate Judge is clearly wrong in treating the cook-shed as if the permanent injunction applied to it. That, however, is how the claim is put in the plaint. Obviously on that footing the suit must fail, apart from the admission in the plaint that the cook-shed has been in existence for more than four years, an admission which, as the Munsif observes, would, in any case, preclude the plaintiffs from claiming an easement under Section 26 of the Limitation Act. The plaintiffs' claim in this respect should also, in my opinion, be dismissed.
(iii) As to the privy, the suit is in essence a suit in ejectment to which Article 142 of the Limitation Act applies. That is the view of the learned Munsif and here again I agree with him. The privy has brick walls and was built more than twelve years ago. The observation of the learned Subordinate Judge that the plaintiffs only came to know of its existence within twelve years of the suit is irrelevant. In a case falling under Article 142 they were bound to prove possession within twelve years.
10. In this Court reference was made for the plaintiffs to Framji v. Goculdas (1892) I.L.R. 16 Bom. 338 and Chokkalinga v. Muthusami (1897) I.L.R. 21 Mad. 53, but the circumstances of the present case are very different. Here we have a masonry structure built on land close to the plaintiffs' house. Possession so taken can not be whittled away.
11. The possession, however, of the land on which the privy stands does not entitle the defendant to the remainder of the strip of land between the two houses. As to that remainder the decree of the Subordinate Judge will stand.
12. The result is that the whole suit must be dismissed save and except so far as it relates to the strip of land. The declaration made by the Subordinate Judge in respect there to will be affirmed except as regards the land on which the privy stands. The parties will bear their own costs throughout.
13. I agree in making the order proposed by my learned brother substantially for the reasons given by him. But I express no opinion whether Order XXI, Rule 32(5) applies to prohibitory as well as to mandatory injunctions.