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Report No. 144

8.1.2. Question for consideration.-

Now a controversy has arisen as to the meaning of the word "act required" in Order 21, rule 32(5) of the Code. Do these words also cover the situation where a prohibitory injunction has been incorporated in the decree or, are they confined to cases where the decree is a mandatory one?

8.1.3. There are two views on the subject-the wider view and the narrower view. The wider view has been taken by Allahabad. According to the Allahabad High Court, whether the injunction is mandatory or prohibitory, rule 32(5) applies, and relief of the nature mentioned therein can be obtained in execution; a separate suit is not necessary. In the Allahabad Case1, the decree restrained the judgment-debtor from causing obstruction to a certain pathway. On the judgment-debtor placing obstacles, the decree-holder sought, in execution (i) attachment of the offending constructions, (ii) removal of those constructions, and (iii) detention of the judgment-debtor in civil prison. The judgment-debtor raised an objection that such execution of the decree was not permissible. But the Allahabad High Court held that it was permissible.

1. Harihar Pandey v. Mangal Prasad, AIR 1986 All 9(13, 14), Paras. 16-19 (N.A. Mithal, J.).

8.1.4. In an earlier Allahabad case1, the plaintiff had obtained an interim injunction directing the defendant to refrain from interfering with plaintiff's possession of certain plots. It was held that plaintiff can sue to recover damages, if the defendant stops him from cultivating the plot. Plaintiff's remedy was not confined to execution, This case, however, does not directly hold that Order 12, rule 32(5) is narrow in scope, as held by some of the other High Courts, In other words, it does not rule out the enforcement of a preventive injunction through execution.

1. Chiranji Lal v. Behari, AIR 1958 All 326 (329), paras. 27, 28 (R.N. Gurtu, J.).

8.1.5. In contrast, the following High Courts have taken the view that a fresh suit is required, where the injunction is a prohibitory one:-

(i) Andhra Pradesh,1

(ii) Calcutta,2

(iii) Karnataka,3

(iv) Kerala,4

(v) Madras5, and

(vi) Punjab6.

1. Evuru Venkata Subbayya v. Srishti Veerayya, AIR 1969 AP 92 (97, 98), paras. 9, 10 (DB).

2. Hem Chandra v. Narendra Nath, AIR 1934 Cal 402 (403, 404).

3. Kariyappa v. Haladappa, AIR 1989 Karn 163 (Bhat, J.).

4. Joseph v. Makkaru, AIR 1960 Ker 127 (129), para. 14 (M.S. Menon and B. Velu Pillai, JJ.).

5. Nan Chinnabba Chetty v. E. Chengalroya Chetty, AIR 1950 Mad 237.

6. Murari Lal v. Naval Kishore, AIR 1961 Punj 547 (549), paras. 5-9 (S.S. Dulat and D.K. Mahajan, JJ.).

8.1.6. The Andhra Pradesh reasoning is, that while Order 21, rule 32, sub-rule (1), would apply to mandatory as well as prohibitory injunctions, sub-rule (5) applies only to mandatory injunctions1.

It has observed as under:-

"Sub-rule (5) is the only pertinent provision, but that again, on the language used, applies to mandatory injunctions. The word "injunction" in sub-rule (5) has been qualified by the words "has not been obeyed" and the rule says, that in the event of disobedience of the injunction, the Court may 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.

This could only be a mandatory direction. A prohibitory direction would be not to do an act. A mandatory direction is a command to do a positive act; a prohibitory injunction is a negative one restraining him from doing a particular act. The difference between the two is obvious and rule 32(5) can only be construed as applying to mandatory injunctions and not to prohibitory injunctions."

1. Evuru Venkata Subbayya v. Sristhi Veerayya, AIR 1969 AP 92 (97), para. 9.

8.1.7. In a Calcutta case placing a narrow construction on Order 21, rule 32(5), it was stated.1

"In the case of mandatory injunction clause (5) would often give the decree-holder a complete remedy. But if a simple prohibitory injunction is disobeyed a fresh cause of action arises for which adequate remedy, either by a mandatory injunction or in some other way has to be sought for in a suit."

1. Hem Chandra v. Narendra Nath, AIR 1934 Cal 402 (403, 404) (M. N. Mukherji & S.K. Ghosh, JJ.).

8.1.8. In Karnataka case,1 the decree-holder, sought in execution the appointment of a Commissioner for the removal of a superstructure which had been unauthorisedly built by the judgment-debtor, in violation of the injunction granted by a decree of the Court. The Karnataka High Court held that this could not be done by way of an execution proceeding. In its view, the decree-holder must in such circumstances, file a separate suit. This conclusion is based on a narrow construction of the words "act required" in Order 21, rule 32(5).

1. Kariyappa v. Haladappa, AIR 1989 Kam 163 (Bhat, J.).

8.1.9. According to one of the Kerala cases, Order 21, rule 32(1) applies to a preventive injunction.1 However, the judgment does not discuss the scope of Order 21, rule 32(5). In an earlier judgment does not discuss the scope of Order 21, rule 32(5). In an earlier judgment,2 it had held that Order 21, rule 32(5) does not apply to prohibitory injunctions.

1. Paul v. Cheeran Narayanan, AIR 1960 Ker 232 (233) (Krishnamoorthy Iyer, J.).

2. Joseph v. Makkarlu, AIR 1960 Ker 127.

8.1.10. In a Delhi case,1 the competition was between Order 21, rule 32 and Order 21, rule 35. The injunction issued against the licensee was to vacate the premises occupied by him as licensee. It was held that steps to evict the licensee would mean, practically, dispossession of the licensee (judgment-debtor). This was not permissible under Order 21, rule 32.

1. Sarup Singh v. Daryodhan Singh, AIR 1973 Del 142 (FB).

8.1.11. The Delhi case was really one in which the decree against the licensee was to quit and vacate the premises. The decree in question was sought to be enforced under Order 21, rule 32(5). The Court held that rule 32(5) cannot in the very nature of things, come to the aid of a decree-holder to obtain possession. But the rulings of the other High Courts (mentioned above) do reveal a conflict of decisions.



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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