Judgment :- 1. This Second Appeal arises out of an application, made by the respondent on 22-2-1960 for the execution of a consent decree passed on 25-61941. The following is an agreed translation of the material portion of the decree: "As the plaintiffs and others are in law entitled to an easementary right of passage over the pathway bund of the width of 11/2 six foot koles marked A, Al in the plan produced with the plaint, it is decided that the 1st defendant shall within 10 days from this date restore the aforesaid pathway to its original state by removing the coconut, arecanut and plantain trees planted by him thereon and shall leave the said Pathway in a fit state for convenient passage to and fro by the public, and that in case the 1st defendant fails to do so within the time allowed, the said coconut, arecanut and plantain trees be removed through the amin so as to restore the pathway to its original condition and make it fit for passage without obstruction or hindrance. The expenses of the said work are to be paid by the 1st defendant to the 1st plaintiff and if not paid the same may be realised in execution." 2. The pathway in question runs through the 1st defendant's land. The appellant is the son and legal representative of the 1st defendant and it is no longer in dispute that, in or about March 1960, he put up a structure in his land obstructing the pathway. It is for the removal of this structure under Order XXI R.32 (5) of the Code that the respondent (who was the 4th plaintiff in the suit) brought the present application for execution. That application has been allowed by the courts below and hence this Second Appeal. 3. The courts below upheld the contention of the respondent that the decree embodied a mandatory injunction requiring the 1st defendant not merely to clear the pathway of all obstructions then existing but to keep it clear of obstruction for all time. The contention of the appellant here as well as in the first court has been that the only injunction in the decree is for the removal of the trees then existing on the pathway and that for the rest the decree is only a declaratory decree. The contention of the appellant here as well as in the first court has been that the only injunction in the decree is for the removal of the trees then existing on the pathway and that for the rest the decree is only a declaratory decree. There is nothing enjoined on the 1st defendant after the removal of the obstructions then existing; and hence there is nothing in the decree that can be executed against the obstruction now made. In the lower appellate court, however, the appellant took a slightly different position and his case there was that while there was a mandatory injunction for the removal of the trees then existing on the pathway, the decree in so far as it related to the future was only a prohibitory injunction restraining the 1st defendant from causing any new obstruction to the pathway and that such a decree could not be executed under Order XXI R.32(5) so as to effect the removal of any obstruction since made in disobedience of the decree. 4. I am inclined to the view that the position taken by the appellant in the lower appellate court is the correct position. The decree requires the 1st defendant not merely to remove the obstruction then existing in the pathway but also to leave the pathway in a suitable state for use as such. This necessarily implies an obligation on his part not to cause any obstruction in the future so that there is a perpetual prohibitory injunction to that effect. But to say, as the courts below have done, that there is a mandatory injunction requiring the 1st defendant to maintain the pathway clear of all obstruction for all time, is, to my mind to read into the decree something which is not there. 5. On behalf of the appellant, reliance is placed on the decision in Hem Chandra Haskar and another v. Narendra Nath Bose and others (A.I.R.1934 Calcutta 402) and it is said that in the light of that decision the present decree must be construed as containing no injunction whatsoever, prohibitory or otherwise, in respect of obstructions not then in existence. But it seems to me that the decree there was different. What that decree said was that the defendants in question would not be competent to open any boat-passage apart from the eight boat-passages allowed to them by the decree. But it seems to me that the decree there was different. What that decree said was that the defendants in question would not be competent to open any boat-passage apart from the eight boat-passages allowed to them by the decree. The decree did not say that the defendants shall not open any additional passages and therefore it was held that the decree amounted only to a declaration that the defendants were entitled to only eight boat-passages. Had the decree said that the defendants shall not open any passage in addition to the eight passages allowed to them, then perhaps, the decree would have been construed as a prohibitory decree as was done in G.E. Sampth Chetty v. M.S. Sankara Iyer (1930 M.W.N. 809) where it was held that where a consent decree says that the defendant shall not do a particular thing it amounts to an injunction restraining him from doing that thing. 6. In the present case, the clause in the decree that requires the 1st defendant to leave the pathway in a suitable state for passage by the public seems to me to mean that he shall leave it so for all time, in other words, to mean that he shall not in any way obstruct the pathway. On the other hand I do not think it enjoins on him any positive act. 7. It is clear that the appellant has disobeyed the prohibitory injunction by putting the structure in question. What remains to be considered is whether, in execution of the decree, the structure can be removed. I think not. The decree in so far as we are how concerned with it, is only a prohibitory injunction. It only says that the 1st defendant shall not do a particular thing. It does not direct that he shall do a particular thing. From the wording of Order XXI R.32 (5) it seems to me clear that that sub-rule can apply only for doing an act required to be done by the decree; not for the abatement of a mischief prohibited by the decree. It does not direct that he shall do a particular thing. From the wording of Order XXI R.32 (5) it seems to me clear that that sub-rule can apply only for doing an act required to be done by the decree; not for the abatement of a mischief prohibited by the decree. There is in this case no positive act required to be done by the decree (leaving out of account the removal of the trees then standing on the pathway with which part of the decree we are not now concerned) and hence there is nothing in the decree which can be executed under Order XXI R.32 (5). There is no doubt "an act restrained from being done". That act has been done; but the restraint imposed by the decree cannot, without violence to language, be regarded as an act required to be done; and it seems to me that the remedy lies not in sub-rule (5) but in sub-rule (1) of the rule. 8. That sub-rule (5) does not apply to prohibitory injunctions, may now be regarded as well-settled - see Hem Chandra Naskar and another v. Narendra Nath Bose and others, (A.I.R.1934 Calcutta 402), Angad and others v. Madho Ram and others (A.I.R.1938 Allahabad 416), Nari Chinnabba Chetty v. E. Changalroya Chetty and others (A.I.R.1950 Madras 237) and Ramabrahma Sastri and others v. Lekshminarasimham (A.I.R.1957 A.P. 44). G.E. Sampath Chetty v. M. S. Sankara Iyer (1930 M. W. N. 809), on which great reliance is placed on behalf of the respondent, does not seem to me to lay down a different rule. There, the decree in question was construed as being in part a mandatory injunction and in part a prohibitory injunction and all that their Lordships held was that the decree was executable under R.32 of 0. XXI, either under sub-rule (1) by detention and attachment of property or under sub-rule (5) by having the act required to be done by a person appointed for the purpose. To my mind what the decision means is that the decree was enforceable in its entirety under sub-rule (1), and that to the extent it required the defendant to do some act, in other words, to the extent it was a mandatory injunction, it was executable under sub-rule (5) as well. 9. To my mind what the decision means is that the decree was enforceable in its entirety under sub-rule (1), and that to the extent it required the defendant to do some act, in other words, to the extent it was a mandatory injunction, it was executable under sub-rule (5) as well. 9. It follows that the order of the courts below directing the removal in execution of the structure put up by the appellant is wrong in law, and that order is therefore set aside. The obstruction can only give rise to a cause of action for a suit for its removal. 10. The decree holder respondent prays that she may he allowed to convert this application for execution into a suit for the removal of the structure in question. I think this is only reasonable and I direct the first court to make the conversion on application being made to it for the same. This execution application is therefore remanded to that court for the purpose. 11. The respondent will pay the appellant the costs so far incurred in this proceeding irrespective of the eventual decision. Allowed.