JUDGMENT : The above revision petition is filed challenging the order in E.P.No.292 of 2015 in OS No.137 of 1993 dated 17.2.2020 on the file of the Additional Sub Court, Irinjalakuda whereby the execution petition filed by the petitioners/decree holders was rejected essentially holding that there is a subsequent suit filed by the judgment debtors for fixation of boundary and that without fixing the eastern boundary of the decree holders property the court cannot jump to the conclusion that the judgment debtor has violated the decree of injunction. 2. Petitioners contended that the petitioners along with their mother late Kalyani Amma are the owners in possession of the plaint schedule properties 3 in number. In 1993, the defendant tried to destroy the eastern boundary of the petitioners plaint schedule property item No.1 and had removed the entire barbed fencing. Thereupon, OS No.137/1993 was filed seeking injunction restraining the defendant/respondent and his men from trespassing into the plaint schedule item No.1 and from destroying or altering the eastern boundary tress and boundary fence. A commission was taken out, Ext.C1 report was filed along with Ext.C1(a) plan. The said suit was decreed and Ext.C1(a) plan was made part of the decree and plaintiffs were granted a decree of perpetual injunction restraining the respondent from trespassing into any portion of plaint schedule item No.1 lying on the western side of the boundary shown in Ext.C1(a) plan and from destroying the boundary or boundary trees. The said judgment and decree was confirmed in appeal filed as AS No.399 of 2000 and also a second appeal was filed as RSA No.122 of 2005. Even thereafter, there was constant violation of the injunction and the concrete wall put up by the petitioners was destroyed. Thereupon, the present execution petition was filed as EP No.292 of 2015 before the Sub Court, Irinjalakuda and a commission was appointed and a report was filed on 21.10.2015. In the said report, the commissioner clearly stated that the matti trees and other trees are standing in the fence in the same position and reported that the concrete pillars which were planted in the fence between the trees mentioned as 5,6,9 etc in Ext C1 Commission Report are uprooted and destroyed. At the time of enquiry, the 2nd petitioner Ramakrishnan as well as another person, named Babu, who is a worker were examined. 3. At the time of enquiry, the 2nd petitioner Ramakrishnan as well as another person, named Babu, who is a worker were examined. 3. The learned senior counsel appearing for the petitioners submits that the Trial Court dismissed the execution petition based on totally wrong reasoning, stating that the respondent herein had filed another suit for fixation of boundary, and only after fixation of boundary the exact violation could be ascertained. 4. The respondent entered appearance through counsel and submitted that the allegation that they have violated the terms of the decree and have removed the concrete poles is absolutely without any basis and the allegation against them is without any bonafides. It is also contended that the boundary reported in Ext.C1(a) sketch is not in existence at present and the said boundary was not based on the survey measurement. It is further contended that the decree-holder after destroying the eastern boundary trespassed and reduced almost 12 cents of property of the judgment debtor into his possession and as per the title deed of decree schedule item No.1 property it has only an extent of 1.66 Acres, but now the decree holder is in possession 1.78 Acres of land and after trespassing into the property of the judgment debtor, the decree-holder attempted to install concrete poles. It is further submitted that no concrete poles were reinstalled on 24.09.2015 and in Ext.C1(a) plan the presence of concrete poles along the boundary is not at all reported. It is also submitted that the judgment debtor has instituted a suit for fixation of boundary and therefore sought for dismissal of the civil revision petition. 5. I have heard the rival contentions of both sides. 6. O.S. No. 137 of 1993 was filed by the petitioners seeking permanent prohibitory injunction to restrain the defendant and his men from trespassing into plaint schedule item no.1 or from destroying and alienating the existing eastern boundary trees and boundary fence. The petitioners have also sought for declaration of their joint right and possession over item no.2 pathway and for a mandatory injunction to restore the original position of the destroyed boundary and for realisation of damages for Rs.3500/-. O.S.No. 503 of 1993 was filed by the respondent who is the defendant in O.S. No. 137 of 1993 seeking a declaration that the pathway mentioned in item no.1 and provided as per partition deed no. O.S.No. 503 of 1993 was filed by the respondent who is the defendant in O.S. No. 137 of 1993 seeking a declaration that the pathway mentioned in item no.1 and provided as per partition deed no. 424/69 no longer exists and has part and parcel of the property of the plaintiff and that the defendants have no right over the same and also for a perpetual injunction restraining the defendant from trespassing into the property and take income and from committing any act of waste. Both the suits were tried together and O.S. No. 137 of 1993 was decreed granting perpetual injunction restraining the defendant from trespassing into any portion of plaint schedule item no.1 lying on the western side of boundary shown in Ext C1(a) plan and from destroying the boundary or boundary trees and also found that plaintiffs 1 and 2 are having the right of passage through plaint schedule item no.2 to enter item no.1. Plaintiffs were also allowed to recover Rs. 3500/- as damages from the defendants. The relief of mandatory injunction was declined. Aggrieved by the same, appeal as well as second appeal was preferred but both ended up in dismissal. As per the decree, injunction was granted restraining the defendant from trespassing into any portion of plaint schedule item no.1 lying on the western side of boundary shown in Ext C1(a) plan. Therefore, while passing the decree, the western side of the property was identified by the appointment of an Advocate Commission who has prepared Ext C1(a) plan. The allegation in Annexure 7 Execution Petition filed as E.P. No. 2 of 2015 is that the respondent has trespassed into the property and has removed and destroyed the concrete walls erected and sought for appointment of an Advocate Commission and an Ameen to restore the boundaries as shown in Ext C1(a) report and plan which is destroyed by the respondents. The sketch appended to Annexure 5 plan, i.e. C1(a) plan, the western side boundary has been identified and the said plan was made part of the decree. The appeal and second appeal filed challenging the judgment and decree also ended up in dismissal. Advocate Commission was taken out in the execution stage and it is reported that the concrete poles erected in between the boundary trees were found to be destroyed. The appeal and second appeal filed challenging the judgment and decree also ended up in dismissal. Advocate Commission was taken out in the execution stage and it is reported that the concrete poles erected in between the boundary trees were found to be destroyed. The Execution Court dismissed the application essentially finding that Ext C1(a) plan was not based on any survey measurement and further that it is the case of the respondent that it is the decree-holder who has removed the concrete poles and has encroached upon the property of the judgment debtor and therefore a suit for fixation of boundary has instituted by him and therefore, till the eastern boundary is fixed in the said proceedings, the court cannot come to a conclusion that there is violation of the decree of injunction and therefore, the execution petition is not maintainable. 7. The decree has been passed based on Ext C1(a) report and plan and the appeals filed against the same have also ended up in dismissal. The petitioners who have obtained a decree in their favour is entitled to enjoy the fruits of the decree. Filing of a subsequent suit by the judgment debtor for fixation of boundary alleging that the decree-holder has destroyed the concrete walls and has trespassed into the judgment debtor’s property cannot be a reason for not considering the application for executing the decree obtained by the petitioners in O.S. No. 137 of 1993. This Court in Gopinathan Pillai V v. Rajappan and Others, 2011 (2) KHC 508 has held that Sub Rule (5) of Rule 32 of Order 21 CPC can be applied and used to enforce and implement even a decree for a prohibitory injunction. A similar view was taken by this Court in Ajayakumar v. Damayanthi, 2004 KHC 541 wherein paragraphs 7 and 8 reads as follows: “7. The execution court has a duty to make every endeavour to ensure that the decree holder does secure the fruits of the decree. Courts render assistance of police and other officials in the matter of execution even in the absence of specific provisions in the Code authorising the same in discharge of such duty. The jurisdiction conferred on the civil courts as becomes clear from S.9 of the Code is almost unlimited in the matter of resolution of disputes of civil nature between persons. The jurisdiction conferred on the civil courts as becomes clear from S.9 of the Code is almost unlimited in the matter of resolution of disputes of civil nature between persons. The litigants who approach the Civil Court are obliged to incur considerable expenditure by way of Court Fees, Pleader's fees Pleader's Clerk's charges and other miscellaneous expenditure and often have to wait for years before they obtain an executable decree. Though in a light vein it is said that O.21 the paradise of the judgment debtors and that the ordeal of the plaintiff commences after he obtains a decree. I find that notwithstanding CPC. Amendment Acts 46/99 and 22/02, S.47 remains intact and only two rules of O.21 have been amended. R.32 is significantly one of them. The change introduced in R.32 of O.21 is that a new explanation has been incorporated under which it is not clarified that the expression “act required to be done” appearing in sub-r(5) of R.32 shall cover prohibitory injunctions also. Thus it is possible now under O.21 R.32 to have even decrees for prohibitory injunction enforced to a practicable extent in the same way as decrees for mandatory injunctions. In other words, the decision in Joseph alias Kochu (supra), AIR 1960 Ker. 127 , and the two decisions of the Andhra Pradesh High court referred to in the order of this Court in CRP No.402/94 no longer hold the field in so far as they relate to execution of prohibitory injunction decrees under sub-r(5) of R.32 of O.21. The introduction of the explanation to sub-r(5) of R.32 reveals the anxiety of the Parliament to ensure that the executing court is able to enforce obedience not only of decrees for mandatory injunctions but also decrees for prohibitory injunctions. 8. The problem now before me is simple. There is dispute between the judgment debtors and the decree holders as to whether the trees which admittedly have been cut and removed stood in the decree schedule properties or outside the same. The above dispute which is one of identity of the decree schedule properties has been raised for the first time before the executing court. The proper and effective method for resolving that dispute is by appointing a commission for the purpose of identifying the decree schedule property. The decree holders alone are not to blame for the delay which has been caused in the matter. The proper and effective method for resolving that dispute is by appointing a commission for the purpose of identifying the decree schedule property. The decree holders alone are not to blame for the delay which has been caused in the matter. At any rate, the delay from the side of the decree holders in the matter of seeking deputation of a commissioner is only to be condoned since a commission is very likely to enable the executing court to discharge its duty of ensuring the enforcement/execution of the decree.” 8. In view of the above facts and circumstances, I am of the view that the dismissal of the Execution petition as not maintainable, especially for the reason that there is a suit for fixation of boundary instituted by the judgment debtor and only on fixation of boundary in the said suit, actual violations could be ascertained, cannot be accepted. The question regarding encroachment by the petitioners into the property of the respondent and the request for fixation of boundary etc are to be considered in the said suit and the said aspect cannot be a reason for dismissing the Execution Petition as not maintainable. Therefore, E.P. No. 292 of 2015 in O.S. No. 137 of 1993 has to be considered on merits. In view of the above, the order dated 17.02.2020 in E.P. No. 292 of 2015 in O.S. No. 137 of 1993 of the Subordinate Judge’s Court, Irinjalakuda is set aside and the matter is remitted back for fresh consideration in accordance with law.