P.C. Jain, J. - (1.) BRIEFLY the facts of this case are as follows: On the basis of a compromise, Sadhu Singh decree -holder respondent obtained a decree against Bawa Singh judgment -debtor on 31st July, 1963, for permanent injunction to the effect that the defendant (Bawa Singh judgment -debtor) would retain the latrine and would throw its water through the Parnala shown as 'L.M.' in plan Exhibit P. 1. The defendant (judgment -debtor) was further directed to construct a drain with its slope towards the East, so that the latrine water could flow towards that side. As the judgment debtor did not comply with the terms of the decree, Sadhu Singh decree -holder took out execution of that decree on which a Local Commissioner was appointed who after implementing the terms of the decree submitted his report on 2nd February, 1964, Exhibit D.H. 2. After some time the judgment -debtor again demolished the drain, on which the present application was filed by Sadhu Singh decree -holder under Order 21 rule 32 of the Civil Procedure Code, on 25th February, 1965, alleging that the judgment -debtor had disobeyed the injunction order by demolishing the drain. A prayer was made that the judgment -debtor be detained in civil prison on account of disobedience of the order of the Court. The application was contested by Bawa Singh on the pleas that the present application was not maintainable and that the Municipal Committee had started constructing municipal drain in the locality and in execution of that project the disputed drain was also demolished. On the pleadings of the parties, the executing Court framed the following issues: 1. Whether the judgment -debtor has disobeyed the injunction issued against him ?
(2.) WHETHER the present application does not lie ? Relief. 2. The executing Court decided issues Nos. 1 and 2 against the judgment -debtor and held that the injunction order passed by the Court was intentionally flouted by him (judgment -debtor). It was directed that the property to the extent of the value of Rs. 2,000/ - be attached and the drain be got constructed again at the expenses of the decree -holder and the amount be recovered from the judgment -debtor. Shri Lal Chand, Execution Clerk, was appointed Local Commissioner for the compliance of the decree. Feeling aggrieved from the judgment of the executing Court an appeal was preferred by the judgment debtor. The learned District Judge, Gurdaspur, partly allowed the appeal and the value of the property attached was reduced from Rs. 2,000/ - to Rs. 200/ -. It was also held that there was no need for the Local Commissioner to function for the construction of the drain as the same had now been constructed on a permanent basis by the Municipal Committee, Gurdaspur. Dissatisfied with the judgment of the learned District Judge, Bawa Singh judgment -debtor has filed Execution Second Appeal No. 677 of 1937 and Sadhu Singh has filed Execution Second Appeal No. 816 of 1937, and this judgment would dispose of both these appeals. I shall first deal with Execution Second Appeal No. 677 of 1937 filed by the judgment debtor. 3. Mr. H.R. Aggarwal. learned counsel for the judgment -debtor, contended that the judgment -debtor did not disobey the injunction order by demolishing the drain and the finding of the Courts below to the contrary was not sustainable. I am unable to agree with this contention of the learned counsel. The finding that the drain in question was demolished by Bawa Singh, was arrived at after considering the entire evidence and is a pure finding of fact and is unassailable in second appeal. Even on merits the learned counsel could not satisfy me and no material was brought to my notice on the basis of which I could take a different view from the one arrived at by the Courts below. Hence the finding on issue No. 1 is affirmed.
(3.) IT was next contended by Mr. H. R. Aggarwal that the present application made by the decree -holder under Order 21, rule 32, was not legally maintainable. The only remedy available to the decree -holder was by way of a separate suit and not by way of execution as the breach complained of gave a fresh cause of action to the decree -holder. On the other hand, Mr. S. S. Mahajan, learned counsel for the decree -holder; contended that the decree passed in favour of the respondent was for mandatory injunction by which the appellant was directed to construct a drain through which the water of the latrine could be thrown. According to the learned counsel, if any breach was committed any time by the judgment -debtor then the only remedy of the decree -holder was by way of an application under Order 21, rule 32(5) and not by way of a separate suit.;