1 S.B.CIVIL WRIT PETITION NO.1668/2008 Banshi Lal v. The CJ (JD) & JM, Ist Class, Nagaur & Ors. Date of Order :: 10th March, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. K.S.Gill, for the petitioner. .... Interference by this Court under Article 227 of the Constitution of India is sought by challenging the order dated 23.2.2008 passed by Civil Judge (J.D.) and Judicial Magistrate, Nagaur, accepting an application under Order XXI Rule 32(5) read with Section 151 Code of Civil Procedure. In brief, facts of the case are that the plaintiff respondent No.2 filed a suit for declaration and permanent injunction with regard to a way. An application was also filed under Order XXXIX Rules 1 and 2 Code of Civil Procedure seeking temporary injunction restraining the present petitioner from using the land in dispute. An application was also filed by the petitioner defendant seeking temporary injunction to permit him to use the land in dispute as the way. Learned trial court dismissed the application of the plaintiff and allowed the 2 application filed by the petitioner defendant by an order dated 16.10.2000. The appeals preferred by the plaintiff respondent against the orders aforesaid came to be decided by an order dated 20.8.2002 passed by learned Additional District Judge, Nagaur directing both the parties not to interfere with use of the way through the land in dispute. An application subsequently was filed by the plaintiff respondent as per the provisions of Order XXI Rule 32(5) read with Section 151 Code of Civil Procedure seeking permission to get the bushes removed from the land in dispute to enable use of that as way. Learned trial court by its order dated 23.2.2008 accepted the same and directed the present petitioner to remove the bushes from the land in dispute. While assailing validity of the order aforesaid the contention of counsel for the petitioner is that no application as per the provisions of Order XXI Rule 32(5) read with Section 151 Code of Civil Procedure could have been entertained by the trial court as there is no decree in favour of any of the parties warranting thats execution. I have considered the argument advanced and also perused the order impugned. It is true that the nomenclature of the application is shown as an application under Order XXI 3 Rule 32(5) read with Section 151 Code of Civil Procedure, but what it appears is that it is an application seeking exercise of inherent powers by the Court for getting the bushes removed from the path. Mere mention of a provision erroneously does not make the substance different in any manner. The order passed by learned trial court for removal of bushes from the land in dispute is only to make the interim order workable and there is no illegality in that. Mere mention of Order XXI Rule 32(5) read with Section 151 Code of Civil Procedure in the application or in the order impugned does not make any change in character of powers exercised by the court and in present case those are nothing but inherent powers. In view of it, I do not find any force in this writ petition. The same, therefore, is dismissed. ( GOVIND MATHUR ),J. Kkm//ps.