Nirmal Chandra Mukheerji, J.
1 . This is an appeal against the judgment and decree of Sri S. N. Mukherjee, Subordinate Judge, 5th Court, Alipore, in Misc. Appeal No. 709 of 1973 dated 19-2-1974 against those of Sri N. Chakraborty, Mimsif, 6th Court, Alipore, in Misc. Case No. 2-8 of 1972 dated 27-7-1973 arising out of Title Execution Case No. 61 of 1969.
2-3. The facts of the case may briefly be stated as follows:--
The plaintiff got a decree for permanent injunction in respect of a path-way_ After the decree was passed, there was obstruction on the part of the judgment-debtons by constructing pillars and iron gate at the entrance of the pathway. The decree-holder filed the execution case when the judgment-debtors filed an application under Section 47 of the Code contending that the execution case for delivery of possession of the disputed pathway in excess of the claim in the absence of mandatory injunction for breaking open and removing the pucca pillars and iron gate is misconceived. The decree-holder filed a written objection contending that the decree was corrected by the appellate court. Commissioner's report and map depicting the disputed pathway as 70 ft, 3 inch long on the south and 66 ft. 8 inch, long on the north with uniform width of 6 ft. and that there being a decree for permanent injunction against the petitioner in respect of the disputed pathway allocations by them that is putting iron gate with brick walls on two sides are illegal and the executing court can pass appropriate order for removal of obstacles put up after the decree. The learned Munsif was of opinion that as the decree-holder got a decree for permanent injunction the court would be competent to direct the removal of the admitted obstruction on the suit passage. The learned Munsif dismissed the application under Section 47 of the Code and the decree-holder was directed to take steps for execution by removing at his cost the obstacles raised by the judgment-debtors. Being aggrieved, the judgment-debtors filed an appeal. The learned appellate court set aside the order of the learned Munsif holding that in the absence of a decree for mandatory injunction the decree-holder cannot execute the decree. Being aggrieved, the decree-holder has come up to this Court.
4. Mr. Shyama Charan Mitter, learned Advocate appearing on behalf of theappellant, submits that in the present case it is true that- there was no decree for mandatory injunction tout the plaintiff got a decree for permanent injunction restraining the judgment-debtors from interfering with the possession of the decree-holder in respect of the disputed pathway. Admittedly after the passing of the decree the judgment-debtors have made constructions of iron gate with brick walls at the entrance of the . pathway thereby preventing the decree-holder from using the pathway. In such circumstances, in order to give effect to the decree passed by the court, the court is competent to pass necessary order and it is not at all necessary for the decree-holder to file another suit for mandatory injunction.
5. Mr. Mitter in support of his contention refers to a decision reported in 22 Cal WN 851 : (AIR 1919 Cal 674) (Sachi Prasad Mukherjee v. Amar Nath Roy). This is a Bench decision and it has been held that 'The remedy for a breach of a permanent injunction is by application for execution and not by suit. Order 21, Rule 32 (5) of the Civil P. C. applies to injunctions both mandatory and prohibitory'. The judgment was delivered by Richardson, J. Beachcroft, J. however, agreed in making the order proposed by Richardson J. His Lordship did not express any opinion as to whether Order 21, Rule 32 (5) applies to prohibitory as well as mandatory injunction.
6. Mr. Mitter then referred to a decision reported in 38 Cal WN 101: (AIR 1934 Cal 402) (Hem Chandra Naskar v. Narendra Nath). This is also a Bench decision. In this case their Lordships laid down 'Clause (5) of Rule 32 of Order 21 of the C.P.C. applies to the case of mandatory injunction only and not to simple prohibitory injunctions'. Their Lordships considered the decision reported in 22 Cal WN 851 : (AIR 1919 Cal 674) (Sachi Prasad Mukherjee v. Amar Nath Roy). In this case there was a solenamah decree and their Lordships found that the sole-namah decree could not be read as containing an injunction and that the decree should be treated as a decree embodying a contract between the parties and in that way, was only a declaratory decree.
7. The next case referred to by Mr. Mitter has been reported in AIR 1961 Mys 268 (Gundila Manjappa Shetty v. Manjakke Shedthi). In this case it has been held that 'A person disobeys an injunction not only if he fails to perform an act which he is directed to do but also when, he does an act which he is prohibited from doing. There is as much disobedience in the one case as in the other.' It was further held that 'If during execution of a decree granting permanent injunction to the decree-holder it is found that circumstances have altered and the question whether such alteration of circumstances was the consequence of the acts of the judgment-debtor becomes a complicated question of fact the executing court, may, possibly in appropriate cases, direct the aggrieved party to institute another suit; but, even if it could do so, the question as to whether execution should be disallowed on the ground in a particular case is a matter depending on the discretion of the executing court and on the facts of the case which it has to consider'. In para 11 it is observed 'It is not easy to understand how the judgment-debtor in this case can contend that since the injunction granted against him was merely in the nature of a prohibition, and not mandatory, the executing court cannot find him guilty on having disobeyed it, although it was satisfied that he has done the very thing which he was forbidden from doing. The decree-holder was therefore clearly entitled to ask the executing court to direct the judgment-debtor to obey the injunction and in default to commit to civil prison'. In the present case as has already been stated the decree-holder got a decree for permanent injunction and the judgment-debtors were restrained from interfering with the decree-holder's possession in respect of the disputed pathway and it is the admission of the judgment-debtors that such obstruction was made after the decree was passed. In such circumstances, Mr. Mitter submits that the executing court is within its right to pass appropriate orders for removal of the obstruction in order to give effect to the decree passed by the court. Mr. Mitter also refers to a decision reported in 1977 (2) Mad LJ 19 (Ondipudur Weavers Co-operative Production and Sales Society Ltd. v. Velumani), It was laid down 'It is a well established rule that while the machinery and remedy provided under Order 21, Rule 32 (1) of the Civil P. C. would cover cases of both prohibitory and mandatory injunction, 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 wherever there is no mandatory injunction directing the judgment-debtor to do a positive act, the remedy open to decree holder is to file a fresh suit seeking a mandatory injunction'. Though such a legal proposition was laid down, in the case before His Lordship there was & decree declaring the respondents' right to use the pathway and an injunction restraining the appellants from interfering with such right. When the respondents, decree-holder, found that the pathway is so covered with thorny (bushes 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 been 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 dis-obeyed 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. As such circumstances, it was held that the application under Order 21, Rule 32 (1) and (5) was maintainable. Relying on the decisions referred to above and considering the facts and circumstances of the case, I am of the opinion that the learned Munsif was right in rejecting the application under Section 47 of the Code.
8, In the result, the appeal succeeds and the same is allowed. The order passed by the learned Subordinate Judge is set aside and that of the learned Munsif is restored. Let the records go down early. The execution case will proceed. There will be no order for costs in this appeal.