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PETITIONER:

CENTRAL BANK OF INDIA

Vs.

RESPONDENT:

STATE OF GUJARAT & ORS.

DATE OF JUDGMENT11/09/1987

BENCH:

MISRA RANGNATH

BENCH:

MISRA RANGNATH

DUTT, M.M. (J)

CITATION:

1987 AIR 2320 1988 SCR (1) 106

1987 SCC (4) 407 JT 1987 (3) 552

1987 SCALE (2)510

ACT:

Code of Civil Procedure 0.41, r. 5(1)-Exercise of power

to stay execution of a decree-When an amount has been

deposited pursuant to an order of execution the appellate

court cannot order its refund to the judgment-debtor.

HEADNOTE:

The respondent filed a first appeal in the High Court

against a decree and an application for stay of its

operation. Before any order was made in the stay

application, the appellant, who was the decree-holder,

levied execution, pursuant to which the respondent deposited

the decretal amount in the executing court. The respondent

moved the High Court for an order stay of further

proceedings in execution. The High Court passed an order of

stay in the application already pending before it and

directed refund of the amount deposited in the executing

court to the respondent. The appellant challenged the order

of refund.

Allowing the appeal,

^

HELD: In the absence of an order of stay under 0.41, r.

S(l) C.P.C., the decree was executable and the judgment-

debtor deposited the decretal dues in the executing court.

Once the decretul dues had come into the executing court

there was indeed no justification for the direction to

refund the same to the judgment-debtor. On the other hand,

the High Court could in its discretion either direct payment

of the amount to the decree-holder subject to terms

safeguarding the interest of the judgment-debtor in the

eventuality of reversal of the decree or direct the amount

to be deposited or invested on terms of interest so that on

the disposal of the First Appeal appropriate directions

could be given. [108D-F]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2200 of

1987.

From the Judgment and order dated 11 23.4. 1986 of the

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Gujarat High Court in C.A. No. 953 of 1985. 106

107

Soli J. Sorabjee, M.V. Singhvi, Mrs. Manik Karanjawala,

N.J. Mehta, R.F. Nariman, D.M. Shah and Rajan Karanjawala

for the Appellant.

Dr. Y.S. Chitale, T.U. Mehta, P.H. Parekh, Suresh

Daluja, M.N. Shroff and Girish Chandra for the Respondents.

The following order of the Court was delivered:

O R D E R

Special leave granted.

Ordinarily in a matter of this jurisdiction under

Article 136 of the Constitution would not have been

permitted to be invoked but having heard learned counsel for

the parties we are of the view that in the facts and

circumstances of this matter, the order of the High Court

should be reversed by allowing the appeal.

The appellant, a nationalised Bank, obtained a decree

in Civil Suit No. 1169 of 1977 from the City Civil Court at

Ahmedabad against several defendants including the State of

Gujarat. So far as the defendant-State is concerned, the

decree ran thus:-

"The suit is partly decreed against the

defendant No. 3 and the defendant No. 3 is ordered

to pay Rs.59,69,422.59 to the plaintiff with

interest at the rate of 6% from the date of the

suit till realisation of the amount by the

plaintiff. The defendant No. 3 shall pay the

proportionate costs of the suit to the plaintiff

and bear its own ............. .

The State of Gujarat has filed a First Appeal in the High

Court of Gujarat being First Appeal No. 1993 of 1983 against

the decree and it is pending disposal. An application for

stay of execution of the operation of the