ORDER
P.S. Narayana, J.
1. The Civil Revision Petition is filed by 4th petitioner-4th plaintiff in E.P. No. 195/99 in O.S. No. 352/87 on the file of Principal Junior Civil Judge at Karimnagar. The other decree-holders-plaintiffs are impleaded as respondents 4 to 6 in the C.R.P. The 1st respondent is the 1st defendant and the 1st Judgment-debtor in E.P. No. 195/99 in O.S. No. 352/87 on the file of Principal Junior Civil Judge at Karimnagar. The said E.P. was filed under Order 21 Rule 32(5) r/w. Section 51 and Sections 151 C.P.C. with a prayer to remove the obstruction i.e., structures raised to block the passage by appointing Bailiff of the Court. In execution of the decree in the aforesaid suit E.P. No. 41/96 was filed seeking two reliefs i.e., attachment of movables and for recovery of costs and another relief for detention of Judgment-debtor in civil prison and the said E.P. No. 41/96 was allowed on 13-7-1999 after recording evidence and E.P. No. 143/99 was filed for detention of Judgment-debtor No. 1 i.e., the 1st respondent in the C.R.P. in civil prison for the maximum period permissible in law till he obeys the decree and the said E.P. was allowed and the Judgment-debtor No. 1 was sent to civil prison by the order dated 2-12-1999 and despite the same the 1st respondent even now is not ready and willing to obey the decree and remove the obstruction i.e., structures raised to block the passage and as such a relief was prayed for appointment of Bailiff to carry out the work to remove the entire obstruction i.e., structures, namely, the gate and other structures made in the said passage shown in the plan annexed to the decree and the E.P. so as to have smooth access to the plot of the decree-holders. The 1st respondent-Judgment-debtor No. 1 had raised an objection that in view of the orders passed in E.P. No. 41/96 and E.P. No. 143/99 there is nothing further to be executed and he had already undergone civil imprisonment by virtue of the orders passed in E.P. No. 143/99 dated 2-12-1999 and inasmuch as the decree in O.S. No. 352/87 had been already executed and satisfied in terms of Order 21 Rule 32(1) and (2) C.P.C. by ordering attachment and imprisonment, the decree in question is not executable and a further objection was raised that the decree is only a decree of permanent injunction and not a decree of mandatory injunction and hence the E.P. filed under Order 21 Rule 32(5) C.P.C. is not maintainable. No doubt, the construction of two rooms by his two sons also had been referred to in the objections. The court below after hearing both the parties had dismissed the E.P. and the 4th decree-holder-4th plaintiff alone had preferred the C.R.P. aggrieved by the said order.
2. Sri P.V. Vidyasagar, the learned counsel representing the Revision Petitioner in a calm, but emphatic way, had made the following submissions. The view taken by the court below is rigid view and the Courts are expected to be flexible and adopt an approach by virtue of which it is seen that the orders and decrees of the Courts are well honoured. The learned counsel also had submitted that these acts complained of are of temporary nature and hence on the ground of separate cause of action driving the parties to a separate suit will be unjust and also unsustainable in law. The learned counsel had drawn my attention to the provisions of Order 21 Rule 32(1) and 32(5) C.P.C. and also the illustration and had contended that the language of Order 21 Rule 32(5) C.P.C. is wide enough to include the execution of not only mandatory injunctions, but also prohibitory injunctions as well. The learned counsel also had placed strong reliance on KILARI PEDDA APPALASWAMY Vs. BHAGIVILLI VENKATASWAMY (CMASA 68/75 DATED 22-4-1976), 1976 A.L.T. 60 (NRC) and also HARIHAR PANDEY Vs. MANGALA PRASAD SINGH AND OTHERS, . The learned counsel also had tried to distinguish the decisions of other High Courts and also of our High Court on this point on facts and had stressed that the obstructions in the present case are temporary in nature and hence such constructions can be ordered to be removed even by executing a decree for permanent injunction and it cannot be said to be the intention of the Legislature that for every obstruction and trivial act of the opposite party in the case of a perpetual injunction and the violation or breach thereof had been complained of driving the party to a separate suit will not only cause much hardship and it is also against justice and equity and at any rate by exercising even the inherent powers under Section 151 C.P.C. the court below should have exercised the power of appointing the Bailiff in a matter of this nature.
3. Sri Madhava Rao, the learned counsel representing the 1st respondent had made elaborate submissions relating to the nature of the passage and other factual details. The learned counsel also had drawn my attention to the decree in O.S. No. 352/87 and also the relevant paragraphs in the Judgment. The learned counsel had contended that inasmuch as the decree for perpetual injunction already had been executed, further execution does not lie. The learned counsel had placed strong reliance on several decisions in this regard, like, RAMBRAHMA SASTRI Vs. LAKSHMINARASIMHAM, AIR 1957 A.P. 44, Y.LAKSHMAIAH Vs. ESSO EASTERN INC. AND OTHERS, , EVURU VENKATA SUBBAYYA Vs. SRISHTI VEERAYYA AND OTHERS, , SARUP SINGH Vs. DARYODHAN SINGH, and also KARIYAPPA Vs. HALADAPPA, .
4. Heard both the counsel and perused the material available on record. The decree passed in O.S. No. 352/87 dated 19-9-1994 reads as follows:-
“That the suit of the plaintiffs be and is hereby decreed against Defendant No. 1 and dismissed against Defendants Nos.2 and 3;
That the Defendant No. 1 be and is hereby perpetually restrained from fixing a gate and from closing the suit passage shown in red colour in the plan annexed to the decree, of the plaintiffs”.
5. In paragraph 5 of the Judgment it was observed
“B. Bhagwan Rao (PW-1) who is plaintiff No. 4 in the suit deposed that he purchased site from Defendant No. 1 in the year 1963 under a registered sale deed. At the time of purchase, there was 15 feet wide passage starting from the main road situated on the Western side of the house of defendant No. 1. They are using the said passage since the date of his purchase. He filed the suit when Defendant No. 1 refused to allow them to pass through suit passage and obtained interim injunction. Till December, 1993, there was no gate in the passage. In the month of January, 1994, the Defendant No. 1 opened the gate in the suit passage. He and other plaintiffs are exclusive owners of the suit passage to reach their site and Defendant No. 1 has no right over the suit passage”.
6. It is not in dispute that the 1st respondent already was detained in execution of the decree for perpetual injunction and the breach committed by him thereof. It is no doubt true that it was brought to my notice that the learned predecessor in office in the court below had made an order appointing the Bailiff. But the circumstances under which further proceedings were not carried out are not made clear. The court below at paragraph-7 had observed as follows:
“While passing the decree in O.S. No. 352/87 my learned predecessor passed the following relief in favour of the plaintiff at Point No. 2 that the defendant No. 1 be and is hereby perpetually restrained from fixing of get and from closing the suit passage shown in red colour in the plan annexed to the decree of the plaintiffs. On perusal of the above order with reference to relief claimed by the decree holder in the main suit reveals that only relief No. 2 in the plaint was granted by the Court while passing the decree. This E.P. filed under Order 21 Rule 21 and Rule 32(5), C.P.C. r/w 151 C.P.C. to remove the entire obstruction i.e., structures like gate and other structures made in the suit passage so as to have smooth access to the plot of Decree holder. An executing Court cannot go beyond the decree, but pleadings in the plaint gave importance when the relief that was not granted was sought to be executed. D.H.R. No. 3 and 4 are only purchasers from the J.Dr. No. 1. They could have independently sought right of passage in pursuance of the registered sale deed in their favour. While passing the order to remove the gate and structures my learned predecessor did not give notice to the J.D.R. about the course of action that he was proposing to take by way of demolition order. This Court has already executed the perpetual injunction order by utilizing the provisions of Order 21 Rule 32(1) C.P.C. by detaining the J.D.R. No. 1 in civil prison”.
7. At paragraph-9 the court below had observed :-
“In view of the foregoing reasons I find that the structures in the suit passage can not be ordered to be removed as there is no mandatory injunction granted by the court for removal of the same. Further no specific order was passed by my learned predecessor while passing order dt.22-12-99. I also find that the decree has been satisfied by sending J.D.R. to the civil prison for dis-obedience of the decree of perpetual injunction under Order 21 Rule 32(1) C.P.C. the only course open to the D.H.R. is only to file decree for mandatory injunction against J.D.R. 1 and 2 for removal of obstruction for the suit passage and the master plan road which was occupied by the J.D.R. No. 2 with a compound wall “.
8. It may be appropriate to look into the relevant provisions of the Code of Civil Procedure, hereinafter in short referred to as “Code”. Order 21 Rule 32 of the Code reads:
Decree for specific performance of restitution of conjugal rights, or for an injunction. – (1) Where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property, or in the case of a decree for specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (3) or sub-rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(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.”
9. In the present case, Order 21 Rules 32(1) and 32(5) of the Code are more relevant for the purpose of deciding the present dispute. It is not in dispute that already the decree was put into execution. The main contention raised by the counsel for the Revision Petitioner is that a direction to the Bailiff can be granted even while executing a decree for permanent injunction in exercise of the powers under Order 21 Rule 32(5) r/w. Sections 51 and 151 of the Code. In the decision referred (1) supra it was observed that where obstruction is caused by raising a temporary construction in violation of a decree granting prohibitory injunction, the same can be got removed in execution of the decree and every small construction or obstruction of a temporary nature need not be got removed by a separate suit without treating the said construction or obstruction as a fresh cause of action and otherwise it will only give a handle to the Judgment-debtor to violate the orders of prohibitory injunction with impunity and drive the decree-holder to separate suits. In the decision (2) referred supra it was observed that the expression “an act required to be done” cannot necessarily mean a positive act only and may also include acts which one is precluded from doing by the decree and when a decree restrains a party from doing a particular act it must imply that he shall not act in a manner so as to cause the very act to be done and performed which he was precluded from doing and he must not let himself to become an instrument for disobeying the injunction and must avoid dong any thing that may cause its infringement. Evidently, this approach of the Courts is based on liberal approach. In SACHI PRASAD Vs. AMAR NATH, AIR 1919 Calcutta 674 it was held that the remedy for breach of permanent injunction is by an application for execution and not by suit and Order 21 Rule 32(5) C.P.C. applies to injunctions, both mandatory and prohibitory. But however in HEM CHANDRA Vs. NARENDRA NATH, AIR 1934 Calcutta 402 it was held that Order 21 Rule 32(5) of the Code applies to the cases of mandatory injunctions only and not to simple prohibitory injunctions. In ONDIPUDUR WEAVERS CO-OPERATIVE PRODUCTION AND SALES SOCIETY LIMITED Vs. VELUMANI AND OTHERS, 1977(2) MLJ 19 it was held that it is a well established rule that while the machinery and the remedy provided under Order 21 Rule 32(1) of the Code would cover cases of both prohibitory and mandatory injunctions, sub-rule (5) of the said Rule will apply to only cases of mandatory injunctions because it specifies 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 the decree-holder is to file a fresh suit seeking a mandatory injunction. The dispute in this case was relating to one pathway and when the pathway was covered with thorny bushes and the right of the pathway was declared in favour of the plaintiff, but the same could not be properly exercised and when the Judgment-debtors resisted the attempt of the plaintiffs-decree-holders in clearing the thorny shrubs found on the pathway, the decree-holders had approached the Court wherein it was held that such interference with the clearance of thorny shrubs will amount to an intricate attempt on the part of the judgment-debtors to interfere with the right of pathway of the decree-holders-plaintiffs and in such circumstances it was held that an application under Order 21 Rule 32(1) and (5) of the Code was maintainable. In the decision referred (6) supra, the Full Bench of Delhi High Court had observed that Rule 32(5) of Order 21 of the Code can in the nature of things not come to the aid of the decree-holder to obtain dispossession of the Judgment-debtor and the act which is authorized by sub-rule (5) to be done consists of something which may be done so far as practicable by the decree-holder himself at the instance of the Judgment-debtor and the decree directing the Judgment-debtor to quit and vacate the premises cannot constitute an act which may without the will and volition of the Judgment-debtor be done by the decree-holder. In the decision referred (7) supra, it was held that Order 21 Rule 32(5) of the Code applies only to mandatory injunctions. In the decision referred (3) supra, it was held that Order 21 Rule 32(5) of the Code is applicable to the execution of decrees for mandatory injunctions and if a prohibitory injunction is disobeyed by a fresh construction causing obstruction to a right of way, a fresh cause of action arises for which remedy has to be sought in a suit for removal of obstruction. In the decision cited (4) supra, it was held that in the case of disobedience of a decree of prohibitory injunction, mandatory injunction of a suitable character filing under Order 21 Rule 32(5) cannot be substituted even under inherent powers. In the decision cited (5) supra, the Division Bench while dealing with this aspect held that sub-rule (1) of Order 21 Rule 32 of the Code will apply both to mandatory as well as prohibitory injunctions, but sub-rule (5) on the language used applies to mandatory injunctions. The Division Bench also had observed that under Section 51, whether by itself or read with Section 151 of the Code, a decree cannot be executed in circumstances which give a fresh cause of action to the decree-holder and Section 51-E cannot enable the Court to give a fresh mandatory direction to remove something which was not in existence at the time of the decree.
10. It is no doubt true that as strenuously contended by Sri Vidyasagar in execution of a decree for perpetual injunction if for every trivial and temporary act or temporary obstruction the parties are driven to yet another suit, they will be put to much hardship and there will be multiplicity of litigation as well. However, it is no doubt true that the recent trend of the Apex Court appears to be that flexibility is the virtue of law Courts (M.V. AL QUAMAR Vs. TSAVLIRIS SALVAGE (INTERNATIONAL) LIMITED, ). It may be that in certain circumstances, law has to bend before justice (LILY THOMAS AND OTHERS Vs. UNION OF INDIA AND OTHERS, ). But it is also pertinent to note that the doctrine of equity cannot expand its tentacles to such an extent so as to defeat the specific provisions of law. This being the position and especially in the light of the view expressed by the Division Bench in the decision referred (5) supra, it cannot be said that the impugned order made by the Court below suffers from any legal infirmity. Further in DODLA NARAYANA Vs. VELTI REDDEMMA, it was held that where in execution of decree for prohibitory injunction the Judgment-debtor was detained in civil prison, he cannot be detained for more than three months and for more than one time and the order of detention till he obeys the decree was held to be illegal.
11.
In the light of the foregoing discussion and also in the light of the fact that there are certain disputed questions of fact relating to the obstructions caused and especially in the light of the evidence of PW-1 and also what had been observed in the Judgment of the Court below at paragraph-5 and the decree, I am of the considered opinion that the impugned order of the Court below does not suffer from any illegality or jurisdictional error warranting interference under Section 115 of the Code. The Civil Revision petition is devoid of merits and accordingly it is dismissed. No order as to costs.